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GAENISHJMENT. 
STATUTES. 


A   TREATISE 


ON  THE  LAW  OP 


ATTACHMENT 


AND 


GARNISHMENT 


WITH  AN  APPENDIX  CONTAINING  A  COMPILATION  OF  THE  STATUTES  OF  THE  DIFFEEENT 
STATES  AND  TEBBITOBLES  NOW  IN  FORCE  OOVEBNINO  SUITS  BY  ATTACHMENT. 


By  W.  p.  WADE, 

AuTHOE  OF  "  Law  OF  Notice,"  etc. 


IN  TWO  VOLUMES. 


VOL.  2. 

GARNISHMENT,  STATUTES. 


San  Francisco: 
BANCROFT-WHITNEY  CO.  ' 
Law  Publishees  &  Law  Booksellers. 
1886. 


T 
u3ll95oL 

\ztq 


COPrBIGHT.  1886. 

By  W    p.  wade. 


TABLE  OF  CONTENTS  OF  VOL.  n. 


GARNISHMENT  —  STATUTES. 


CHAPTER  XXIV. 

GARNISHMENT,   GENERALLY  CONSIDERED. 

§  325.  General  description  of  the  process — Wherein  it  differs  from  seizure, 

§  326.  The  necessary  parties  to  the  proceeding  by  garnishment. 

§  327.  Garnishee's  liability  to  plaintiff. 

§  328.  Nature  of  defendant's  demand  against  garnishee. 

§  329.  Property  that  may  be  reached  by  garnishment. 

§  330.  The  capacity  in  which  property  is  held  by  garnishee,  before  service, 

§  331.  The  character  in  which  such  property  is  held  after  service. 

§  332.  The  nature  and  object  of  the  proceeding  against  gamisheek.^ 

§  333.  The  proceedings  purely  statutory. 

§  334  Garnishment  unaided  by  equity. 

§  335.  Equitable  rights  not  subject  to  garnishment. 

§  336.  Judgment  against  garnishee  depends  on  regularity  of  procesg. 

§  337.  When  garnishee's  position  is  antagonistic  to  both  the  principal  partieSi 

§  338.  The  effect  of  the  garnishment  regularly  served. 

§  339.  General  distribution  of  matters  to  be  conaideredi 


CHAPTER  XXV. 

PARTIES   TO   THE   PROCEEDING, 

§  340.  The  parties  generally,  and  their  relation  to  each  other^ 

§  341.  Third  parties — debtors  of  defendant,  and  parties  in  possession  of  de- 
fendant's property. 

§  342.  Private  corporations  and  their  stockholders  as  garnishees, 

§  343.  Foreign  corporations  as  garnishees. 

§  344.  Non-resident  garnishees. 

§  346.  Municipal  corporations  as  garnishees, 

§  346.  States — exemption  from  suit. 

§  347.  Officer  of  court  as  garnishee. 

§  348.  Officer  of  private  corporation  as  garnishee  of  corporation, 

§  349.  Agent  or  servant  of  debtor  as  garnishee, 

§  350.  The  wife  of  defendant  as  garnishee. 


79i^l8'7 


yi  TABLE   OF  CONTENTS, 

§  351.  Debtors  and  partners  as  garnishees. 

§  352.  Judgment  debtors  as  garnishees. 

§  338.  Garnishees,  whether  joint  or  several. 

§  3o4.  Interveuors. 

S  355.  Reference  to  other  chapters. 


CHAPTER  XXYI. 

THE   PROCESS — SERVICE   AND   BETUEN", 

§  356.  Preliminaries  to  process — The  affidavit  and  bond. 

§  357.  The  process  in  garnishment. 

§  353.  Amendment  of  process. 

§  359.  Service  on  the  garnishee — Co-debtors — Partners.  ^ 

§  360.  Serdce  on  corporations. 

§  361.  Waiver  of  service  by  garnishee. 

§  362.  Process  waived  by  defendant. 

§  363.  The  officer's  return  of  process. 


CHAPTER  XXVII. 

THE   garnishee's  ANSWER. 

§  364    The  answer  considered  generally,  and  as  a  pleading. 

§  365.    The  written  answer. 

§  366.     Interrogatories  and  answer  as  a  means  of  discovery. 

§  367.     Direct  denial  of  possession  or  indebtedness. 

§  368.     Same — Disclosure  of  matters  of  belief. 

§  369.     Documents  annexed  to  the  answer. 

§  370.    Garnishee  required  to  disclose  accounts  between  himself  and  defendant 

— Interrogatories  relevant,  and  irrelevant. 
§  371.     Disclosure  of  prior  assignment. 
§  372.     Facts  not  to  be  placed  in  issue  by  denial. 
§  373.     Exemption  as  a  defense. 

§  374.     Answer  as  to  the  capacity  in  which  garnishee  holds  property  of  de- 
fendant. 

§  375.     Garnishee's  interest  in  the  fund  or  property  attached. 

§  376.     Privileged  communications. 

§  377.     Doubtful  and  uncertain  answers  construed  against  garnishee. 

§  378.     Exceptional  cases  where  disclosure  need  not  be  certain  and  explicit. 

§  379.    The  Statute  of  Limitations. 

§  380.    Extent  to  which  the  answer  is  taken  as  true. 

§  381.     The  answer  as  evidence. 

§  382.     Answer  of  prior  garnishment. 

§  383.     Amendment  of  the  answer. 

§  384     The  doctrine  of  estoppel  applied  to  garnishees. 

§  385.     Answers  by  corporations — By  agents. 

§  386.     The  effect  of  an  answer  as  a  general  appearance. 

§  387.     Exceptions  to  the  sufficiency  of  the  answer. 

§  388.     Time  within  which  answer  must  be  made. 

§  389.    Consequences  of  failure  in  answering— Garnishee's  allowance, ' 


TABLE   OP  CONTENTS.  Vll 

CHAPTER  XXVIII. 

ISSUES    ON   THE    ANSWER,    BETWEEN    PLAINTIFF   AND  GARNISHEE. 

§  300.  General  nature  of  issues  to  be  tried. 

§  391.  Jurisdiction  of  the  subject  of  the  action. 

§  392.  Practice  and  pleading  to  raise  issues  on  answer. 

§  393.  Scope  of  inquiry  and  investigation. 

§  304.  Further  consideration  of  garnishee's  liability  to  defendant^ 

§  395.  The  defense  of  exemption. 

§  396.  Evidence  on  the  trial  of  the  traverse. 

§  397.  Burden  of  proof. 

CHAPTER  XXIX. 

EXTENT   TO   WHICn   GARNISHEE  IS  REQirrKEI>  IK)  DEFEND* 

§  398.  General  remarks. 

§  399.  The  defense  of  want  of  jurisdiction. 

§  400.  The  defense  of  prior  garnishment. 

§  401.  Exemption  as  a  defense. 

§  402.  Assignment  prior  to  service. 

§  403.  Defense  of  payment— No  goods,  etc. 

§  404.  Defensei  on  account  of  the  capacity  in  which  Ihe  gamiahee  holda  prop- 
erty. 

§  405.  Other  matters  of  defense  to  garnishment  proceedings. 


CHAPTER  XXX. 

garnishee's   LIABILITY   IN  RESPECT    TO   PERSONAL    PROPERTT  IN  HIS 

POSSESSION. 
^  406.     General  remarks. 
407.     The  kind  of  property  that  may  or  may  not  be  the  subject  of  garnish- 
ment— Effects — Credits — Choses  in  action. 
§',    >.     Shares  in  capital  stock  of  corporations. 

§  4l  .     Garnishee  not  chargeable  in  respect  to  exempt  personal  property. 
§  410.     Defendant's  interest  in  the  property  in  garnishee's  possession. 


^  CHAPTER  XXXI. 

POSSESSION  UPON  WHICH   GARNISHEE'S   LIABILITY  DEPENDS. 

§  411.  Possession,  whether  actual  or  constructive. 

§  412.  Actual  control,  held  more  important  than  legal  control. 

§  413.  Possession  by  a  non-resident  garnishee. 

§  414.  Garnishee's  possession,  whether  with  claim  of  ownership  or  not. 

§  415.  Whether  the  garnishee's  possession  is  rightful  or  otherwise. 

416.  The  cLuestion  of  defendant's  interest  in  or  title  to  the  property  attached. 


^...  TABLE   OF   CONFENTS. 

CHAPTER  XXXII. 

THE   CAPACITY   IX   WHICH   GARNISHEE   HOLDS  DEFENDANT'S  PROPERTY. 

§417  The  general  effect  upon  garnishee's  liability. 

^  4 1  s".  Where  the  party  summoned  as  garnishee  cannot  be  sued. 

§  410.'  Municipal  corporations  as  garnishees. 

§  4-20.  Officers  of  the  law— clerks  of  courts. 

§  4-n"  Sheriffs,  and  other  executive  officers  of  courts. 

^  4^>2  Treasurers,  and  other  public  officers  and  agents, 

§  423.  Assignees,  etc. ,  in  bankruptcy  and  insolvency. 

§  424.  Receivers  and  similar  officers. 

§  425.  Executors. 

§  426.  Administrators. 

§  427.  Guardians  and  curators. 

§  428.  Trustees  of  private  trusts  and  powers. 

§429.  Officers,  agents,  etc.,  of  corporations. 

§  430.  Agents  and  servants  of  other  defendants. 

§  431.  Attorneys  at  law. 


CHAPTER  XXXIir. 

TRANSFER  OR    INCUMBRANCE    OF    PROPERTY   PRIOR   TO   GARNISHMENT. 

§  432.  The  fourth  party  to  the  controversy. 
§  433.  The  intervener's  claim  as  proprietor. 
§  434.     \Vhen  the  consideration  of  the  transfer  is  brought  in  question  by  the 

answer. 
§  435.     Issues  made  with  the  intervener. 
§  436.     Consequences  of  failure  on  the  part  of  garnishee  to  give  notice  to  the 

transfer  of  interest. 
§  437.     Equitable  assignment  prior  to  service. 
§  43S.     Attempted  transfer  ineffectual. 
§  439.     Fraudulent  assignments. 
§  440.    Rights  of  parties  affected  by  prior  mortgage  of  chattels  in  garnishee's 

possession. 
§  441.     Pledge  as  garnishee. 
§  442.    Other  liens  to  which  property  in  possession  of  the  garnishee  may  be 

subject. 


CHAPTER  XXXTT. 

CONTRACTS  BETWEEN  DEFENDANT  AND  GAENISHi_.i 

§  443.     The  contract  to  deliver  property  to  the  owner. 

§  444.     Contracts  that  qualify  garnishee's  liability. 

§  445.     Contracts  by  which  garnishee's  liability  is  unaffected. 


TABLE   OF   CONTENTS.  Ix 

CHAPTER  XXXV. 
oarnishee's  liability  as  a  debtor. 

§  446.  General  remarks. 

§  447.  Nature  of  defendant's  demand  against  garnishee. 

§  448.  A  legal  debt. 

§  449.  The  debt  should  not  be  subject  to  contingencies. 

§  450.  Contingencies  by  which  garnishee's  liability  is  unafiFected. 

§  451.  Conditional  obligation  as  a  foundation  for  garnishment. 

§  452.  A  debt  payable  in  money. 

§  453.  Consideration  of  the  debt — Contracts  of  indemnity. 

§  454.  Capacity  in  which  the  debt  is  contracted — Municipal  corporations  and 

public  oflBcers. 

§  455.  Same — Executors  and  administrators. 

§  456.  Debts  contracted  in  a  private  representative  capacity. 

§  457.  The  plaintiff  as  gamiahee. 


CHAPTER  XXXYI. 
garnishee's  indebtedness  evidenced  by  negotiable  instruments. 

§  458.     Maker  of  negotiable  paper  as  garnishee. 

§  459.  Reasons  for  the  rule  that  negotiable  credits  cannot  be  reached  by  gar- 
nishment of  the  debtor. 

§  460.  Circumstances  that  destroy  the  negotiability  of  instruments — No  ex- 
ceptions to  the  rule. 

§  461.     Conditional  garnishment  of  payer  of  negotiable  paper  before  maturity. 

§  462.    Garnishment,  where  instrument  has  been  fraudulently  assigned. 

§  463.     Effect  of  notice  of  garnishment  upon  rights  of  indorsee. 

§  464.    By  what  law  the  negotiability  of  the  instrument  is  to  be  determined. 


CHAPTER  XXXYII. 

prior  assignment  of  garnishee's  indebtedness   and  contracts 
affecting  his  liability. 

§  465.  Equitable  assignment  of  choses  in  action  generally. 

§  466.  Assignment  of  instruments  which  are  not  negotiable, 

§  467.  Overdue  commercial  paper. 

§  468.  Assignment  of  debts  evidenced  by  writing. 

§  469.  Assignment  of  open  accounts,  etc. 

§  470.  Assignment  of  future  indebtedness. 

§  471.  The  importance  to  the  debtor  of  notice  of  the  assignment 

§  472.  When  and  by  whom  notice  should  be  given. 

§  473.  Garnishee's  liability  aflfected  by  his  contract  relations  with  defendant. 

§  474.  Garnishee's  indebtedness  affected  by  contracts  with  third  persons. 

§  475.  The  consideration  of  contracts  with  third  persons. 

§  476.  The  contract  must  be  with  the  party  capable  of  contracting  in  rela- 
to  the  subject-matter. 


X  TABLE   OF   CONTENTS. 

§  477.     Garnishee's  liability  as  surety  of  guarantor  of  defendant. 

§  478.  Where  defendant  holds  the  claim  against  garnishee  in  a  representa* 
tive  capacity. 

§  479.     Fraudulent  assignments  and  contracts. 

§  4S0.     The  law  that  determines  the  validity  of  contracts  or  assignments. 

§  4S1.  Duty  of  the  garnishee  to  disclose  his  rights  acquired  by  prior  assign- 
ments or  contracts. 

§  482.  The  form  and  substance  of  the  assignment  or  other  contract,  by 
which  garnishee's  liability  may  be  affected. 


CHAPTER  XXXVIII. 

GARNISHMENT    OP    DEBTS    BEFORE    MATURITY; 

§  483.     Indebtedness  at  the  time  of  service,  or  prior  to  answer. 

§  484.     Debts  payable  in  the  future. 

§  485.     Garnishee  not  rec[uired  to  pay  until  his  debt  is  payable*. 


CHAPTER   XXXIX. 

GARNISHEES   JOINTLY     INDEBTED,   AND   CREDITS   JOINTLY   OWHED, 

§  486.  Garnishee  jointly  and  severally  indebted. 

§  487.  Garnishee  jointly  indebted. 

§  488.  Garnishees  severally  indebted. 

§  489.  Credits  jointly  and  severally  owned  by  defendants, 

§  490.  Partnership  credits. 

§  491.  Credits  jointly  owned  by  defendants,  but  not  as  partners,- 


CHAPTER  XL. 

GARNISHMENT  AFTER   SUIT    BY  DEFENDANT   AGAINST   GARNISHEE. 

§  492.     Action  pending  in  the  same  court  from  which  garnishment  issues. 

§  493.     Action  and  garnishment  pending   in  different  courts  of    concurrent 

jurisdiction. 
§  494.     Action  and  garnishment  pending  in  separate  courts  of  different  juris* 

diction. 
§  495.     Where  judgment  against  garnishee  will  bar  the  action  by  defendant. 
§  496.     Where  the  action  by  defendant  wUl  bar  the  proceeding  of  garnishment, 
§  497.    Judgment  debtors  charged  as  garnishees. 
§  498.     The  doctrine  that  judgment  debtors  cannot  be  garnished. 
§  499.     Prior  judgment  in  favor  of  party  summoned  as  garnishee. 

CHAPTER  XLI. 

EFFECT   OF   GARNISHMENT   PRIOR   TO   SUIT   BY   DEFENDANT. 
§  500.     Prior  garnishment  pleaded  in  abatement  by  attachment  defendant. 


TABLE  OP  CONTENTS.  xi 

§  501.     Prior  garnishment  as  ground  for  continuance  of  subsequent  suit  or 

stay  of  execution. 
§  502.     Effect  of  judgment  against  the  garnishee. 

§  503.     Effect  of  judgment  against  the  garnishee  and  a  satisfaction  thereof. 
§  504.     Essential  conditions  to  the  effectiveness  of  judgment  and  satisfaction 

as  a  defense — judgment  against  the  creditor. 
§  505.     The  validity  of  the  judgment  against  the  garnishee. 
§  506.     How  the  judgment  should  be  satisfied  to  constitute  a  valid  defense. 
§  507.     Payment  under  execution. 
§  508.    Judgment  in  favor  of  garnishee. 

CHAPTER  XLII. 

garnishee's  defenses  to  defendant's  cause  op  action. 

§  509.  General  remarks. 

§  510.  The  defense  of  payment. 

§  511.  Same  manner  and  time  of  payment. 

§  512.  Payment  under  compulsory  process. 

§  513.  Garnishee's  set-off,  or  cross  demand. 

§  514.  The  claim  to  be  set  off  considered  as  to  the  parties  interested. 

§  515.  Character  of  the  demand  set  off,  whether  legal  or  squitable. 

§  516.  Garnishee's  collateral  liability  as  a  defense. 

§  517.  When  the  set-off  should  be  acquired  to  become  available  in  garnish- 
ment. 

§  518.  Whether  set-off  due,  or  to  become  due. 

§  519.  Defense  of  failure  of  consideration, 

§  520.  The  Statute  of  Limitations,  and  other  defenses*- 

CHAPTER  XLIII. 

JUDGMENT   IN   GARNISHMENT. 

§  521.  Judgments  upon  which  the  judgment  against  garnishee  depends^ 

§  522.  Judgment  by  default  against  garnishee. 

§  523.  Judgment  on  garnishee's  answer. 

§  524.  Garnishees  of  judgment  and  execution  creditors. 

§  525.  Force  and  effect  of  the  judgment  against  garnishee. 

§  526.  Judgment  against  intervenor. 

§  527.  Collateral  attack  on  the  judgment  in  garnishment, 

§  528.  Judgment  discharging  the  garnishee. 


GARNISHMENT. 


CHAPTER  XXIV. 

GARNISHMENT,    GENERALLY    CONSIDERED. 

§  325.  General  description  of  the  process— Wherein  it  differs  from  seizure. 

§  326.  The  necessary  parties  to  the  proceeding  by  garnishment. 

§  327.  Garnisliee's  liability  to  plaintiff. 

§  328.  Nature  of  defendant's  demand  against  garnishee. 

§  329.  Proiierty  that  may  be  reached  by  garnishment. 

§  330.  The  capacity  in  wliich  property  is  held  by  garnishee,  before  service. 

§  331.  The  character  in  which  such  property  is  held  after  service. 

§  332.  The  nature  and  object  of  tlie  proceeding  against  garnishee. 

§  333.  The  proceeding  purely  statutory. 

§  334.  G'l.rnishment  unaided  by  equity. 

§  335.  Equitable  rights  not  subject  to  garnishment. 

§  336.  Judgment  against  garnishee  depends  on  regularity  of  process. 

§  337.  When  garnishee's  position  is  antagonistic  to  both  the  principal  parties* 

§  338.  The  effect  of  garnishment  regularly  served. 

§  339.  General  distribution  of  matters  to  be  considered. 

§  325.  General  Description  of  the  Process — Wherein  it 
differs  from  Seizure. — Garnishment  is  the  method  of  attaching 
the  effects  of  a  debtor  which  is  directly  suggested  by  the  Cus- 
tom of  London  already  referred  to.^  It  diff^ers  from  attach- 
ment by  seizure  in  two  important  particulars  :  (1)  Its  validity 
does  not  depend  upon  the  officer's  taking  possession.^  (2)  It 
creates  no  specific  lien  upon  the  defendant's  property  in  favor 
of  the  plaintiff.^  There  are  other  incidental  differences  which 
will  be  noticed  as  we  proceed ;  but  they  grow  out  of  the  two 
mentioned.  It  is  peculiarly  adapted  to  the  attachment  of  cred- 
its or  debts  due  the  defendant  in  the  action ;  but  its  operation 
is  not  confined  to  these,  as  it  may  be  employed  where  the  sub- 
ject of  attachment  is  tangible  property,  in   the   possession  of 

1  Ante,  §  1. 

2  Dennistoun  v.  N.  Y.  C.  &  S.  Co.,  6  La.  An.  782. 

SBigelow  V.  Andress,  31  111.  322  ;  Bailey  v.  Ross,  20  N.  H.  302. 
II.  Attach.— 1. 


§    325  GARNISHMENT,  GENERALLY    CONSIDERED.  2 

some  one  other  than  the  debtor,  and  it  is  deemed  necessary  or 
more  expedient  to  resort  to  this  method  than  to  assume  the 
responsibility  of  actual  custody.  Nor  is  it  always  confined  to 
cases  where  the  officer  is  unable  to  seize  the  property  of  the 
debtor.*  For,  as  we  have  seen,  the  mere  fact  that  goods  and 
chattels  are  in  the  possession  of  a  third  party  does  not  exempt 
them  from  actual  seizure  under  process  of  attachment.^  But 
where  the  property  of  the  defendant  is  held  by  one  whose  pos- 
session the  plaintiff  has  no  right  to  disturb;  when  it  is  uncer- 
tain whether  the  third  person  holds  property  which  belongs  to 
the  defendant,  or  what  particular  chattels  he  so  holds  ;  or  when 
the  subject  of  attachment  is  a  debt  due  defendant,  garnishment 
is  the  only  method  by  which  it  can  be  attached.  This  mode 
of  procedui'e  is  not  universally  designated  as  garnishment. 
In  most  of  the  New  England  States  it  is  called  the  trustee  pro- 
cess. In  others,  it  is  called  factorizing.  In  the  one  case,  the 
party  in  possession  is  called  the  trustee;  in  the  other,  X\\e  factor. 
But,  after  all,  it  is  but  another  mode  of  effecting  the  same 
general  purpose,  and  the  two  modes  possess  most  of  the  fea- 
tures that  distinguish  attachment  from  ordinary  process. 
Where  the  affidavit  is  i-equii-ed,  it  is  no  less  essential  in  cases 
of  garnishment  than  of  seizure.^  Where  the  bond  is  an  essen- 
tial prerequisite  to  the  issue  of  the  writ,  the  bond  must  be 
given  before  the  garnishee  is  summoned."  Tlie  service  of  sum- 
mons, actual  or  constructive,  may  figure  alike  in  both  modes 
of  procedure,  although  the  service  upon  the  garnishee  must  be 
personal.  The  plaintiff  may  render  himself  liable  for  the  abuse 
of  process  in  this  manner,  as  though  he  had  directed  the  seizure 
of  defendant's  property.^  Attachment,  when  by  garnishment, 
may  be  dissolved  for  irregularity,  or  on  traverse  of  the  affidavit, 
precisely  as  though  there  had  been  seizure  of  chattels  or  levy 
on  real  property.^ 
.    The  same  circumstances  will,  in  general,  warrant  a  tangible 

<  Burlingame  v.  Bell,  16  Mass.  318  ;  Ante,  §  264. 
6  Ante,  §  264. 
^Post,  §  356. 

"•  Citizen's  Bank  v.  Payne,  21  La.  An.  380  ;  Phelps  v.  Bougbton,  27  La.  An. 
365  ;  Post,  §  356. 
8^n<e,Ch.  XXin. 
9  Post,  §  356. 


3  GARNISHMENT,  GENERALLY    CONSIDERED.  §    323 

levy  and  the  summoning  of  a  garnishee.  There  are  some  fea- 
tures of  garnishment  that  render  it  less  hazardous  for  the 
plaintiff  and  tlie  officer  in  charge  of  the  writ,  and  less  annoy- 
ing to  the  defendant  and  third  parties  claiming  the  property 
or  credit  attached.  It  may  also  be  less  satisfactory  to  the 
plaintiff,  for  the  reason  that  instead  of  the  specific  lien,  the  re- 
sponsibility of  the  garnishee  is  substituted.-^^ 

§  326.  The  Necessary  Parties  to  the  Proceeding  by  Gar- 
nishment.— One  of  the  distinguishing  features  of  this  mode  of 
procedure  is,  that  it  involves  three  parties  :  (1)  The  plaintiff, 
at  whose  instance  the  writ  issues,  who  is  generally  required 
to  make  the  affidavit  and  furnish  the  bond,  where  affidavit 
and  bond  are  required,  except  when  these  acts  are  per- 
formed by  some  one  in  his  behalf.  (2)  The  defendant,  who 
is  the  debtor  whose  effects  are  attached  :  and  (3)  The  gar- 
nishee, who  occupies  the  position  of  a  disinterested  stakehold- 
er between  the  contestants,  and  who  only  becomes  involved  in 
the  litigation,  as  he  may  deny  his  indebtedness  to  the  defend- 
ant, deny  having  any  of  the  property  of  defendant  in  his  pos- 
session, or  fail  or  refuse  to  answer  to  the  notice  or  warninc:. 
The  garnishee  may,  in  the  course  of  the  proceeding,  become  a 
judgment  debtor  to  the  plaintiff;  but  not  necessarily  as  one 
resisting  a  demand  against  himself.  The  proceeding  is  not  in- 
tended to  place  him  in  any  worse  position  than  that  occupied 
by  him  prior  to  the  institution  of  the  suit.-'  lie  is  not  treated 
otherwise  than  as  a  debtor  willing  to  respond  to  his  creditor, 
and  hence  will  not  be  held  for  the  costs  of  the  litijjation,  be- 
yond  such  as  arise  from  his  own  fruitless  resistance  of  plain- 
tiff's endeavors  to  reach  the  money  or  property  in  his  hands. ^ 
It  is  a  favorite  expression  of  the  Courts,  that  the  garnishee  is  a 
disinterested  stakeholder  between  the  parties ;  tliat  he  is  not  to 
meddle,  or  interfere  in  any  manner,  to  influence  the  result  of 

10  The  term  "  garnishment "  and  "  garnishee  "  -will  be  employed  in  subse- 
quent chapters,  for  the  reason  that  it  is  most  convenient,  and  least  likely  to 
be  confusing  to  the  reader.  It  designates  nothing  else  than  that  which  is  in- 
tended in  this  connection  ;  -whereas,  "trustee"  applies  to  other  relations  that 
are  necessarily  involved  in  the  discussion  of  the  la-w  of  garnishment. — Post, 
§§  374,  401,  428. 

1  Curtis  V.  Alvord,  45  Conn.  569;  Daniels  v.  Clark,  38  lo-wa,  556. 

2  Tapper  v.  Cassel,  45  Miss.  352. 


§    327  GAENISHMENT,  GEXERALLT    CONSIDERED.  4 

the  controversy.'^  This  is  doubtless  true  in  the  sense  intended, 
but  it  is  not  true  so  far  as  it  may  convey  the  impression  that 
the  garnishee  may  safely  disregard  the  proceedings,  and  abide 
the  judgment  on  the  faith  of  his  security  in  any  event.  It  is 
true  that  mere  irregularities,  that  defendant  expressly  waives 
or  fails  to  take  advantage  of,  cannot  avail  the  garnishee  as 
grounds  of  objection  to  a  judgment  against  himself.  Never- 
theless, there  are  departures  from  the  course  of  proceedings 
prescribed  by  the  statute  which  are  fatal  to  the  judgment,  and 
payment  under  a  void  judgment  will  not  protect  the  garnishee 
against  his  original  liability.*  It  therefore  becomes  indispen- 
sable to  the  safety  of  the  garnishee  that  necessary  steps  are 
taken  to  confer  complete  jurisdiction  on  the  Court.  If  the 
judgment  does  not  bind  the  defendant,  he  does  not  lose  his 
claim  against  the  garnishee  by  the  latter's  payment. 

If  the  garnishee  does  not  wish  to  admit  his  liability  to  the 
defendant,  he  must  not  remain  silent,  nor  even  rest  content  with 
a  simple  denial  of  indebtedness,  for  although  this  will  be  taken 
as  true  prima  facie,  it  is  not  absolutely  conclusive,  as  we  shall 
see  more  fully  when  we  come  to  consider  the  issue  on  the  an- 
swer.^ 

§  327.  Garnisliee's  Liability  to  Plaintiff. — Before  the  gar- 
nishee can  be  held  liable  to  plaintiff,  two  facts  must  concur  : 
(1.)  He  must  be  in  possession  of  defendant's  property,  or  be 
indebted  to  defendant.  (2.)  Defendant  must  be  indebted  to 
plaintiff.^  Generally,  the  defendant  must  have  a  cause  of  action 
against  the  garnishee,^  and  the  plaintiff  must  have  a  cause  of  ac- 
tion against  the  defendant,  supported  by  a  cause  for  attach- 
ment.^ But  the  former  of  these  two  generally  indispensable  con- 
ditions is  subject  to  an  exception  which  carries  with  it  aflat  con- 

3  Citizen's  Bank  v.  Payne,  21  La.  An.  380;  Williams  v.  Housel,  2  Iowa,  154. 

^  Post,  Ch.  XXIX. 

5  Post,  Ch.  XXVII;  Arthur  v.  Batte,  42  Tex.  159.  Under  the  Wisconsin  stat- 
ute, the  defendant  iias  no  right  to  have  the  case  removed  from  before  the  Jus- 
tice who  issued  the  execution  upon  which  the  garnishment  was  issued,  on  the 
ground  of  prejudice.— Garland  v.  McKetrick,  52  Wis.  261. 

1  Greenleaf  v.  Perrin,  8  N.  H.  273 ;  Farwell  v.  Howard,  26  Iowa,  381. 

2  Carpenter  v.  Gay,  12  R.  I.  30G;  Getchell  v.  Chase,  37  N.  H.  106 ;  Kettle  V, 
Harvey,  21  Vt.  301;  Pundt  v.  Clary,  13  Neb.  406. 

8  "Weatherwax  v.  Paine,  2  ilich.  555. 


5  GARNISHMENT,  GENERALLY    CONSIDERED.  §    327 

tradictlon  of  the  statement,  that  the  summons  places  the  gar- 
nishee in  no  worse  position  towards  the  phiintiff  than  that  oc- 
cupied by  him  towards  the  defendant  in  attachment.  lie  may- 
be held  as  garnishee  when  the  defendant  has  no  cause  of  ac- 
tion against  him  ;  when  he  is  neither  indebted  to  defendant,  nor 
in  possession  of  any  of  defendant's  property.  It  is  when  tiie 
property  of  defendant  has  been  transferred  to  him  in  a  manner 
that  is  binding  on  the  vendor  or  donor,  but  is  fraudulent  and 
void  as  against  creditors.*  There  are  other  exceptions  to  the 
doctrine  that  defendant  must  have  a  cause  of  action  against 
the  garnishee,  as  where  he  is  in  possession  of  defendant's 
pro[)crty  which  the  owner  has  not  a  right  to  reclaim,^  and  also 
where  the  debt  from  the  garnishee  to  the  defendant  is  not  due 
at  tiie  time  of  answering.*^  But  where  the  indebtedness  ac- 
crues in  favor  of  the  defendant  in  attachment  subsequent  to 
the  answer,  it  is  not  affected  by  the  garnishment ;  for  the  ser- 
vice of  attachment  process  ordinarily  only  takes  effect  upon 
such  interests  as  the  defendant  has  at  the  time,  and  not  such 
as  may  come  into  existence  thereafter.'  And  in  order  to  enti- 
tle plaintiff  to  judgment  against  the' garnishee,  he  must  not 
only  have  a  valid  claim  against  the  defendant  whose  interest 
is  attached,  but  he  must  reduce  it  to  judgment.^  And  this 
judgment  must  be  rendered  by  a  Court  of  competent  jurisdic- 
tion, and  all  the  essentials  to  the  exercise  of  that  jurisdiction 
in  the  particular  case  must  have  preceded  the  judgment,  in 
order  to  render  it  a  complete  protection  to  the  garnishee  ;  for 
if  anythino;  is  wantincj  to  entitle  the  garnishee  to  a  discharire 
from  liability  to  his  creditor,  on  paying  the  judgment  rendered 
in  favor  of  plaintiff,  such  judgment  will  not  bind  him.^  But  it 
has  been  held,  where  the  garnishee  was  the  fraudulent  assignee 
of  defendant's  goods,  that  he  might  be  rendered  doubly  liable. 

The  circumstances  were  that  the  assignee  had  been  summoned 

• 
^  Fearey  v.  Cummings,  41  Mich.  376. 

5  Clark  V.  Brown,  14  Mass.  271. 

6  Branch  Bank  v.  Poe,  1  Ala.  396;  Clark  v.  Brown,  14  Mass.  271. 
'!  Arrington  v.  Screws,  9  Ired.  (N.  C.)  42;  49  Am.  Dec.  408. 

8  Hammett  v.  ISIorris,  55  Ga.  644;  Ilousmans  u.  Hilbron,  23  Ga.  186;  Kellogg 
V.  Freeman,  50  Miss.  127;  Leigh  v.  Smith,  6  Ala.  583;  Metcalf  v.  Steele,  42  Miss. 
511;  Rowlett  v.  Lane,  43  Tex.  274;  Roberts  v.  Barry,  42  Miss.  260;  Langdon  v. 
Thompson,  25  Minn.  509. 

9  Post,  Ch.  XXIX. 


§    328  GARNISHMENT,  GENERALLY    CONSIDERED.  6 

by  trustee  process,  and  afterwards  the  goods  were  seized  on 
attachment ;  and  in  the  trial  of  his  right,  against  that  of  the 
attaching  creditors,  the  assignment  was  decided  to  be  fraudu- 
lent, and  it  was  held  that  the  assignee  could  not  hold  the  goods 
to  answer  the  judgment  that  might  be  rendered  against  him  as 
trustee.'*' 

The  property  in  possession  of  the  gai'nishee  must  be  per- 
sonal. ^^ 

§  328.  Nature  of  Defendant's  Demand  against  Garnisliee. — 
But  the  mere  fact  that  the  garnishee  is  indebted  to  the  de- 
fendant, against  whom  plaintiff  has  a  good  cause  of  action  and 
sufficient  grounds  for  attachment  against  defendant,  will  not  in 
every  instance  support  plaintiff's  action  against  the  third  par- 
ty. It  must  be  an  attachable  demand.^  One  of  the  requisites 
of  such  a  demand  is,  that  it  shall  be  liquidated.  Thus,  a  rail- 
road company  was  summoned  as  garnishee  in  an  action  against 
a  defendant,  whose  property  had  been  taken  by  the  corporation 
without  making  payment  therefor.  After  the  company  had 
been  so  summoned,  the  defendant  recovered  judgment  for  the 
value  of  the  property  taken,  to  the  use  of  a  party  to  whom  the 
claim  had  been  transferred,  and  it  was  held  in  a  contest  be- 
tween such  transferee  and  the  plaintiff  in  the  garnishment 
proceeding,  that  the  former  was  entitled  to  the  fund  paid  into 
Court  by  the  garnishee,  for  the  reason  that  the  demand  was 
unliquidated  at  the  time  of  the  attachment.^  It  is  only  an  ab- 
solute, unconditional  liability,  and  not  one  which  is  prospective 
or  subject  to  contingencies,  that  is  the  proper  subject  of  gar- 
nishment.^ Thus,  where  a  party  in  New  Orleans  contracted 
with  a  manufacturer  in  New  York  to  manufacture  certain  ar- 
ticles and  deliver  them  at  the  former  place,  the  jjurchaser  to 
pay  for  the  goods,  together  with  charges  of  transportation  from 
the  place  of  manufacture,  on  delivery  ;  and  the  manufacturer 

M  Piatt  V.  Brown,  16  Pick.  553. 

11  Seymour  v.  Kramer,  5  Iowa,  285. 

1  Getcliell  V.  Cliase,  37  N.  H.  106;  Lomerson  v.  Huffman,  25  N.  J.  L.625;  Paul 
V.  Paul,  10  N.  H.  117. 

2  Selbeimer  v.  Elder,  98  Pa.  St.  154. 

3  Moduel  V.  Mousseaux,  29  La.  An.  228;  Bishop  v.  Young,  17  "Wis.  46;  "Wood 
V.  Buxton,  108  Mass.  102;  Haven  v.  Wentworth,  2  N.  H.  93. 


7  GARNISHMENT,  GENERALLY    CONSIDERED.  §    328 

guaranteed  their  safe  delivery ;  It  was  held  that  the  title  did 
not  pass  to  the  purchaser  until  the  goods  had  reached  their 
destination  and  had  heen  delivered.     As  a  consequence,  they 
were    not,  while  in    transit,  subject  to  attachment    in  a   suit 
against  the  purchaser.^     Where  a  copartnership  has  been  dis- 
solved, but  the  partnership  accounts  are  unsettled,  and  it  is 
doubtful  wiiich  of  the  copartners  is  indebted  to  the  other,  the 
process  of  garnishment  cannot  be  resorted  to  for  the  purpose 
of  ascertaining  the  balance  supposed  to  be  due  from  one  part- 
ner to  the  other. ^     And  for  like  reasons  the  Courts  will  not  in 
any  case  encourage  the  use  of  this  process  for  the  purpose  of 
enforcing  an  accounting  between  defendant  and  garnishee,  nor 
will  they  render  judgment  against  the  garnishee  when  such  an 
accounting  will  be  probably  necessary,   and  the  result  prob- 
lematical.    A  case  in  point  is  where  there  was  a  voluntary 
association,  formed  for  the  purpose  of  buying  family  supplies 
and  selling  them  to  members  and  others.     The  members  owned 
the  capital  in  equal  shares,  and  were. entitled  to  share  any  sur- 
plus.    It  was  held,  that  the  association  could  not  be  held  as 
garnishees,  in  a  proceeding  against  one  who  had  formerly  been 
a  member  of  the  association,  upon  answers  in  which  they  de- 
clared their  ignorance  whether  there  would  be  any  surplus  to 
which  the  former  member  would  be  entitled  on  winding  up 
their  affairs.^ 

But  the  uncertainty  or  contingency  must  be  such  as  will  af- 
fect the  demand  Itself,  rendering  it  doubtful  whether  anything 
will  ever  be  due  or  not :  as  where  something  is  still  to  be  done 
before  there  will  be  an  obligation  to  pay,  and  the  contingency 
upon  which  the  liability  depends  may  never  happen.^  Even 
future  rent  has  been  held  attachable,  where  the  promise  to  pay 
was  absolute.^ 

It  does  not  affect  the  right  to  attach,  that  the  title  to  the 
fund,  which  the  garnishee's  answer  discloses,  Is  In  dispute  be- 
tween the  defendant  and  a  stranger  to  the  suit,  provided  the 
liability  of  the  garnishee  is  absolute  and  unconditional.     The 

4  Bates  V.  N.  O.  e  c.  R.  Co.,  4  Abb.  Pr.  72. 

5  Burnham  v.  Hopkinson,  17  N.  H.  259. 

6  Driscoll  V.  Hoyt,  11  Gray,  404. 

7  Bates  V.  New  Orleans  etc.  R.  Co.,  4  Abb.  Pr.  72. 

8  Rowell  V.  Felker.  54  Vt.  526. 


§    6-ZQ 

chum  of  the  stranger  may  be  determined  by  intervention,  dur- 
ing a  suspension  of  judgment  against  the  garnishee,^ 

Nor  is  the  vaUdity  of  the  attachment  necessarily  affected  by 
the  uncertainty  which  may  exist,  whether  tlie  garnisliee  has 
goods  o?"  credit  in  his  hands,  provided  it  be  certain  that  he  has 
one  or  the  other,  witli  the  right  to  elect  which  it  shall  be. 
Thus,  where,  at  the  time  the  garnishee  was  served,  he  had  pos- 
session of  property  purchased  from  defendant,  under  a  con- 
tract by  which  he  had  the  right  to  elect  whether  he  would  re- 
tain the  property  and  pay  the  consideration,  or  withhold  the 
consideration,  restore  the  property,  and  cancel  the  contract  of 
sale.  The  consideration  was  not  paid,  and  at  the  time  the 
garnishee  had  not  made  his  election.  The  Court  very  properly 
held  that  this  was  not  the  kind  of  uncertainty  or  contingency 
that  would  exempt  him  from  liability.  He  still  had  the  option 
given  him  by  the  contract,  but  should  he  exercise  it  either  way, 
was  bound  to  retain  either  the  consideration  or  the  property 
to  answer  the  judgment  in  the  attachment  suit.^'^  The  contin- 
gency which  renders  the  attachment  of  credits  objectionable 
nmst  be  distinguished  from  the  objection  already  referred  to, 
that  the  claim  must  not  be  unliquidated.  The  doctrine  that 
unliquidated  demands  are  not  attachable,  is  not  of  uniform 
adoption  and  application.  It  has  been  held  that  indebtedness 
which  was  uncertain  in  amount  until  estimates  were  made, 
was,  nevertheless,  the  proper  subject  of  garnishment.^^  But 
wdiere  the  subject  of  attachment  is  unliquidated  damages  for 
breach  of  contract,  or  for  a  tort,  which  can  only  be  rendered 
certain  by  being  reduced  to  judgment,  the  rule  is  quite  general 
that  the  garnishee  cannot  be  held.^^ 

A  contract  to  furnish  boai'd  to  a  given  amount,  when  called 
upon,  is  held  not  to  be  an  attachable  demand,  and  hence  the 
contractor  cannot  be  varnished  as  the  debtor  of  the  contractee.^^ 


9  Thorudike  v.  De"\Volf,  G  Pick.  120. 

w  Smith  V.  Cjilioon,  37  Me.  281.  But  see  Martz  v.  Detroit  F.  &  M.  Ins.  Co.,  28 
Mich.  201,  where  this  principle  does  not  seem  to  be  closely  followed. — Post,' 
§447. 

Ji  Ware  i\  Gowan,  65  Ale.  5?A. 

1-  Ilagg  V.  Booth,  2  Iredell  (X.  C),  282;  Rundlettr.  Jordan,  3  Me.  47;  Post.  § 
445. 

12  Peebles  v.  Meeds,  96  Pa.  St.  150. 


9  GARNISHMEXT,  GENERALLY    CONSIDERED.  §    329 

§  329.    Property  that  may  be  reached  by  Garaishraent. — 

The  statute  <>;;eiierally  makes  meiitiou  of  the  pro[)erty  with  pos- 
session of  wliich  the  garnishee  may  be  charged,  as  effects,  cred- 
its, or  other  personal  property.  But,  however  general  the  lan- 
guage of  the  statute  of  any  State  may  be,  it  cannot  embrace 
real  estate  as  the  proper  subject  of  garnishment.^  There  are 
several  reasons  for  this-.  Real  estate  is  not  even  seizable  in 
attachment  wlien  in  the  possession  of  the  defendant ;  hence  it 
could  not  properly  be  delivered  to  the  officer  or  de[)osited  with 
the  Court  by  the  garnishee.  The  attachment  lien  can  be  [jlaced' 
on  real  estate  witli  greater  facility,  with  less  expense,  and  great- 
er notoriety  than  by  summoning  as  garnishee  the  party  in  pos- 
session. The  title  to  real  estate  passes  by  deed,  to  which 
notoriety  is  given  by  registration  ;  and  the  lien,  to  be  effectual, 
must  be  upon  the  title.  It  is  the  debtor's  transferable  interest 
that  the  attachment  seeks  to  encumber,  and  tiie  process  of  gar- 
nishment is  strikingly  inapt  in  all  respects  to  place  obstructions 
in  the  way  of  a  conveyance  of  real  estate,  regardless  of  who 
may  be  in  possession. 

Aside  from  debts  due  from  the  garnishee  to  the  defendant 
in  the  action,  the  "  effects  "  reached  by  garnishment  must  be 
personal  in  character.  And,  although  credits  and  tangible  chat- 
tels are  alike  affected,  they  are  each  held  under  different  provis- 
ions of  the  statute,  and  to  some  extent,  at  least  in  theory,  sub- 
ject to  different  rules.  Thus,  it  is  held  that  the  garnishment 
operates  so  far  as  a  specific  lien  upon  the  property  in  the  pos- 
session of  the  garnishee,  that  he  is  under  obligation  to  retain 
it  in  specie,  without  changing  its  form,  and  be  prepared  to  de- 
liver it  to  answer  the  judgment  in  the  principal  case.^  There 
is,  undoubtedly,  a  quasi  lien,  that  makes  the  garnishee  liable 
to  the  plaintiff,  in  case  he  abandons  the  possession,  or  restores 
the  property  to  the  owner,  tlie  latter  being  the  defendant.  To 
this  extent,  the  property  may  be  said  to  be  in  the  custody  of 
the  Court,  with  the  garnishee  as  its  agent.^     There  are  obvious 

1  Bissell  V.  Strong,  9  Pick.  562;  Baxter  v.  Currier,  13  Vt.  G15;  Chapman  v. 
"Williams,  13  Gray,  416;  Gore  v.  Clisby,  8  Pick.  555;  How  v.  Field,  5  Mass.  390; 
Seymour  v.  Kramer,  5  Iowa,  285;  Wright  v.  Baseworth,  7  N.  H.  590. 

2  Brashear  v.  West,  7  Peters,  608;  Mattingly  v.  Boyd,  20  How.  128, 
8  Infra,  §  330. 


§    329  GAENISHMENT,  GENERALLY    COXSIDEEED.  10 

exceptions  to  this,  to  be  noticed  in  the  next  succeeding  section. 
But  for  the  general  reason  that  this  kind  of  lien  is  created  on 
the  specific  property,  it  is  generally  impracticable  to  apply  it 
to  money,  although  that  is  included  under  the  general  term 
property.  Thus,  where  gold  and  silver  coin  was  in  the  posses- 
sion of  an  attorney,  who  had  collected  it  for  the  defendant,  it 
was  held  not  subject  to  attachment  as  property,  for  the  reason 
that  the  defendant  had  no  interest  in  the  particular  pieces  of 
coin,  but  was  creditor  to  the  attorney  for  a  certain  sum  of 
money,  and  the  debt  might  be  satisfied  by  payment  out  of  any 
other  funds."*  It  is  also  held  that  garnishment  does  not  reach 
mere  choses  in  action,  as  promissory  notes  in  the  possession  of 
the  garnishee  upon  which  nothing  has  been  paid.^ 

Garnishment  served  on  the  holder  of  such  securities  in  an 
action  against  the  payee,  does  not  prevent  the  latter  from  pros- 
ecuting suits  thereon,  until  required  by  the  Court  to  pay  over 
the  sums  received,  or  deliver  the  claims  into  the  hands  of  a  re- 
ceiver.^ The  property  in  the  hands  of  the  garnishee  must  be 
such  as  under  the  law  of  the  State  is  subject  to  execution  and 
attachment.  If,  for  any  reason,  it  would  be  exempt  in  the 
hands  of  the  owner,  it  cannot  be  affected  by  the  service  of  the 
summons  or  notice  upon  the  garnishee."  But  to  have  this  ef- 
fect, the  exemption  must  be  such  as  could  be  claimed  under 
the  laws  of  the  State  in  which  the  property  is  attached,  where 
the  provision  for  exemption  is  different  from  that  of  the  State 
where  the  wages  are  due.^  Where  the  subject  of  garnishment 
is  wages  due  an  employee,  a  certain  amount  of  which  the  law 
exempts,  the  employer  is  under  no  obligation  to  allow  his  in- 
debtedness to  accumulate  until  the  amount  due  exceeds  the  ex- 
emption ;  but  may,  after  service,  pay  the  wages  as  they  fall 
due,  so  long  as  the  amount  paid  at  any  one  time  does  not  ex- 
ceed what  is  exempt  by  law.'^ 

4  Maxwell r.  McGee,  12  Cush.  137. 

<•  Fitch  V.  Waite,  5  Conn.  117;  Gore  v.  Clisby,  8  Pick.  555,  Gilmer  i'.  Carna- 
han,  81  Pa.  St.  217. 

6  Bank  of  State  of  Missouri  v.  Bredow,  31  Mo.  523.  In  Xew  York  it  is  held 
that  bonds,  bills,  and  promissory  notes  can  only  be  attached  by  seizure. — An- 
thony V.  Wood  (Ct.  App.),  Ch.  Leg  N.,  Oct.  4,  1F84. 

J  Chicago  &  C.  E.  Co.  v.  Ryland,  84  111.  375;  Bliss  i'.  Smith.  78  HI.  359. 

8  Bolton  V.  Penn.  Co.,  88  Pa.  St.  261;  Morgan  v.  Neville,  24  P.  F.  Smith,  52. 

9  Hoffman  v.  Fitzwilliam,  81  III.  521. 


11  GAKNISnMENT,  GENERALLY   CONSIDERED.  §   330 

§  330.  The  Capacity  in  which  Property  is  Held  by  Garn- 
ishee before  Service. — The  capacity  in  which  the  r,^ariiisliec 
hohls  tlie  property  of  defendant,  before  the  service  of  the  writ, 
may  affect  his  liability  after  service,  without  operating  to  re- 
lieve liini  from  all  responsibility;  or  it  may  be  sucli  as  to  ren- 
der the  garnishment  utterly  nugatory.  It  is  generally  of  no 
consequence  whether  he  holds  it  adversely  to  defendant,  or  in 
strict  subordination  to  the  hitter's  claim  of  ownership,  provid- 
ed it  can  be  shown  to  be  the  property  of  defendant,  in  whicli 
the  garnishee  has  no  interest.^  We  have  already  had  occasion 
to  state  that  if  it  be  held  by  ass^ignment,  which  is  binding  ui)oa 
tiie  assignor,  but  froadulent  as  to  creditors,  it  may  be  at- 
tached at  the  suit  of  any  one  of  the  latter.^  But  if  it  be  held 
by  a  valid  ])urchase  and  payment,  it  is  plain  that  there  can  be 
no  interest  belonging  to  the  debtor  to  attach.  So,  where  the 
garnishee  holds  the  property  in  pledge  to  secure  an  indebted- 
ness from  the  owner  to  himself,  it  is  equally  obvious  that  he 
will  be  under  no  obligation  to  subordinate  his  own  rights  to 
the  demands  of  another  creditor.'^  There  is  no  exception  to 
the  rule,  that  the  property  of  defendant  in  his  own  possession 
cannot  be  attached  by  service  of  notice  of  garnishment  upon 
himself.  And  it  is  merely  an  extension  of  the  same  doctrine, 
that  declares  garnishment  ineffectual  to  bind  the  property  in  the 
hands  of  an  agent  or  servant,*  or  Avhen  held  by  a  mere  bailee, 
whose  possession  is  that  of  the  owner. ^  In  such  cases,  the 
property  can  and  should  be  attached  by  direct  seizure.^  But 
this  extension  of  the  rule  by  applying  it  to  cases  where  the 
property  is  in  the  possession  of  an  agent  or  servant  of  the  de- 
fendant, is  by  no  means  general.  It  is  held  that  the  agent 
with  money  in  his  possession,  delivered  to  him  by  the  jirincipal 

1  But  this  must  be  taken  subject  to  statutory  contradictions.  Where  the 
process  was  confined  to  cases  in  which  property  had  been  "  intrusted  or  depos- 
ited in  his  (garnishee's)  hands,"  it  could  not  be  employed  successfully  against 
one  who  held  defendant's  jjroperty  wrongfully. — Stanielsw.  Raymond,  4  Gush. 
314. 

2  Svpra,  §  327. 

3  Davis  V.  Wilson,  52  la.  187;  Badlam  v.  Tucker,  1  Pick.  389;  11  Am.  Dec. 
201;  Mitchell  v.  Byrne,  6  Rich.  (S.  C.)  171;  Aldrich  v.  Woodcock,  ION.  H.  99. 

4  Fowler  v.  Pittsburgh  etc.  R.  Co.,  35  Pa.  St.  22. 

5  Hall  V.  Filter  Mf'g  Co.,  10  Phila.  370. 

6  Hall  V.  Filter  Mf'g  Co.,  10  Phila.  370. 


§    330  GAENISHMEXT,  GEXERALLY    COXSIDERED,  12 

for  the  purpose  of  paying  one  creditor,  may  be  forced  to  pro- 
duce it  in  answer  to  garnishment  by  another  creditor.^  And 
so,  that  a  toll-gate  keeper  would  be  required  to  answer  as  gar- 
nishee in  an  action  against  the  Company,  for  money  in  liis  iiands, 
as  its  servant.^ 

Whei'e  the  statute  confines  the  process  of  garnishment 
to  cases  where  property  is  held  by  third  persons,  there  can 
be  no  doubt  that  a  fair  construction  would  prevent  its  em- 
ployment to  reach  effects  in  the  hands  of  mere  servants  of 
the  debtor,  whose  possession  is  that  of  the  master.  It  is  in 
pursuance  of  this  rule  of  "interpretation  that  one  of  two  joint 
debtors  cannot  be  served  with  garnishment  in  an  action  against 
himself  and  his  creditor,  or  for  the  purpose  of  reaching  effects 
in  the  hands  of  one  of  several  joint  execution  debtors,  lie  is 
liable  in  solldo  with  his  co-defendants,  and  cannot  be  regarded 
as  a  "  third  person."^  When,  however,  the  defendant  in  the 
action  is  a  corporation,  and  the  party  to  be  served  is  an  officer 
of  such  corporation,  a  reasonable  distinction  may  be  made. 
There  is  not  that  same  identity  of  person  between  a  corpora- 
tion and  an  individual  member  thereof,  whether  he  be  an  offi- 
cer or  not,  that  there  is  between  master  and  servant,  in  re- 
spect to  the  possession  of  property  of  the  principal  or  master. 
To  create  the  exemption,  the  relation  should  have  reference  to 
the  thing  sought  to  be  attached.  Even  a  servant  might  stand 
toward  the  master  in  the  relation  of  an  ordinary  debtor ;  or  the 
holder  of  property  subject  to  the  owner's  order,  as  any  stran- 
ger. So,  the  officer  of  a  corporation  may  be  its  debtor,  and 
subject  to  be  proceeded  against,  as  any  other  individual  occu- 
pying the  same  relation.  Upon  this  theory,  it  was  held  that 
the  president  of  a  bank,  having  funds  of  the  corporation  in  his 
hands,  was  in  this  respect  to  be  regarded  as  any  other  debtor, 
and  subject  to  garnishment  in  a  suit  against  the  bank.^"  l\e- 
lying  upon  the  authority  of  this  case,  it  was  subsequentlj- held 
by  the  same  Court  that  the  cashier,  or  other  officer  of  a  cor- 
poration, might  be  required  to   answer  under  garnishment,  as 

^  Center  v.  INIcQuestion,  18  Kan.  476. 

8  Central  Plank-road  Co.  v.  Sammons,  27  Ala.  380. 

9  Bailey  v.  Lacy,  27  La.  An.  39. 

w  Ballston  Spa  Bank  v.  Marine  Bank,  18  "Wis.  490. 


13  GARNISHMENT,  GENERALLY    CONSIDERED.         §   330 

to  fumls  of  the  corporation  In  his  })08session  as  such  officer.^* 
But  elsewhere  it  i^s  lieUl,  us  it  seems  under  a  diffiirent  rule  tlian 
that  followed  in  the  case  last  cited  from  Wisconsin,  that  ticket 
agents  of  a  railroad  company  are  not  subject  to  garnishment  as 
third  persons,  in  an  action  against  the  company. ^■^ 

Where  the  projK'ity  is  held  by  the  garnishee,  as  the  officer  of 
the  Court,  .as  a  legally  a[)[)ointed  custodian,  tht^  property  itself 
is  regarded  as  in  custocUce  legis,  and  not  subject  to  attachment 
by  garnishment,  or  otherwise. ^^  But  when  the  custody  of  the 
law  is  properly  terminated  by  a  failure  to  issue  final  process, 
property  held  by  one  as  receiptor  therefor  will  be  subject  to 
this  process,  at  the  suit  of  another  creditor,  and  he  may  be 
held  liable,  although  by  his  own  procvu'cment  the  property  has 
been  applied  in  satisfaction  of  the  judgment  rendered  in  the 
suit  under  which  he  came  into  possession.'*  This  doctrine  is 
often  tersely  expressed,  to  the  effect  that  money  in  the  hands 
of  an  officer  of  the  Court  is  not  subject  to  attachment  :^^  but 
this  is  not  universally  true,  at  least  as  stated ;  for  it  is  held 
that  the  reversionary  interest  of  the  debtor  in  money  deposited 
with  the  clerk  of  the  Court,  in  lieu  of  a  bond  for  costs,  may 
be  reached  by  garnishment  of  the  clerk. ^*^  And  it  is  also 
held  that  the  residue  in  the  hands  of  the  executive  officer, 
after  satisfying  a  judgment  against  the  defendant  out  of  the 
proceeds  of  an  execution  sale,  may  be  attached  as  the  property 
of  such  defendant  in  such  officer's  hands. ^''  But  money  in 
the  hands  of  the  officer,  as  the  proceeds  of  such  sale,  is  gen- 
erally held  exempt  from  attachment,  as  the  property  of  the. 
execution  creditor.^^  But  this  cannot  be  called  a  general  i^ile, 
as  it  is  held  otherwise  in  some  of  the  States,'^  and  the  decis- 

11  Everclell  v.  Sheboygan  etc.  R.  Co.,  41  Wis.  395.  See,  also,  First  Nat'l  Bank 
V.  Davenport  etc.  R.  Co.,  45 la.  120;  Post,  §  346. 

12  Fowler  v.  Pittsburgh  etc.  R.  Co.,  35  Pa.  St.  22. 

13  Alston  V.  Clay,  2  Haywood  (X.  C. )  171;  Blair  v.  Cantey,  2  Speer(S.  C),  34; 
42  Am.  Dec.  360;  Davis  v.  Holcombe,  1  Ohio,  275;  Dubois  u.  Dubois,  6  Cow. 
494;  Burrell  v.  Letson,  1  Strobliart  (S.  C),  239;  Ante,  §  26a 

"  Cole  V.  Wooster,  2  Conn.  203. 

15  Ross  V.  Clark,  1  Dall.  354. 

IS  Dunlap  v.  Patterson  Fire  Ins.  Co. ,  30  Am.  R.  283;  12  Hun.  627. 

1"  Tucker  v.  Atkinson,  1  Humph.  (Tenn.)  300;  34  Am.  Dec.  650. 

isConant  v.  Bicknell,  1  D.  Chip.  (Vt.)  50;  First  v.  Miller,  4  Bibb.  (Ky.)  311; 
Prentiss  v.  Bliss,  4  Vt.  513;  24  Am.  Dec.  631;  Ruddick  v.  Smith,  4  111.451:  Tur- 
ner V.  Fendall,  1  Crancli.  117;  Thompson  v.  Brown,  17  Pick.  462;  Ante,  §  26-4. 

19  Coane  v.  Freese,  16  N.  J.  L.  305. 


§    331  GARNISHMENT,  GENERALLY    CONSIDERED.  14 

ions  of  the  Courts  of  different  independent  jurisdictions,  when 
rendered  in  reference  to  State  statutes,  cannot  be  harmonized, 
or  brought  to  tlie  test  of  any  governing  principle.^'^  The  prop- 
erty of  the  defendant  may  be  hekl  by  the  garnishee  subject  to  a 
trust,  and  when  so  hekl,  cannot  be  attached  in  his  hands  in  a 
manner  to  work  a  violation  of  the  trust.^^  And  this  is  true, 
though  the  trust  is  to  be  carried  into  effect  by  the  defendant. 
Thus,  where  the  answer  disclosed  that  the  garnishee  was  in- 
debted for  the  carriage  of  freight,  which  was  performed  in  part 
by  defendant,  and  in  part  by  a  stranger  to  the  action  ;  and  it  was 
the  custom  of  defendant  to  collect  the  entire  amount,  and  ac- 
count to  the  stranger  for  his  proportion,  it  was  held  that  the 
garnishee  could  only  be  required  to  account  for  the  share  due 
defendant.-^ 

§  331.  Tli9  Character  in  which  such  Property  is  held  after 
Service. — Supposing  the  property  in  the  hands  of  the  gar- 
nishee to  be  attachable,  and  properly  attached  by  the  proceed- 
ings taken  for  that  purpose,  he  tliereafter  holds  it  subject  to 
the  judgment.  Thenceforward  the  property  is  in  the  custody 
of  the  law,  and  the  garnishee  becomes  its  legal  custodian. ^  It 
is  no  part  of  the  garnishee's  duty  to  interfere  between  the  prin- 
cipal parties,  or  aid  either  in  the  contest,  beyond  such  inci- 
dental assistance  as  he  may  render  to  either  party  by  a  true 
answer.^  It  is  not  even  necessary  that  he  should  interplead 
as  a  claimant  of  the  property.^  But  the  disinterested  position 
occupied  by  the  garnishee  is  not  one  that  is  forced  upon  him 
in  such  a  manner  as  to  prevent  liim  from  showing  that  the 
property  in  his  possession  does  not  belong  to  defendant  in  the 
action.^  While  the  property  is  so  held,  it  is  not  subject  to  at- 
tachment at  the  suit  of  another  creditor  of  the  defendant,  nor 
is  it  necessary  or  proper  for  the  garnishee's  possession  to  be 

20  Zrt/ra,  §333. 

21  Haven  v.  Weutworth,  2  N.  H.  93;  Post,  §  428. 

22  Bowler  v.  European  etc  Co.,  67  Me.  395. 

1  Deunistonii  v.  N.  Y.  etc.  Co.,  6  La.  An.  782;  Scholfteld  v.  Bradlee,  8  La. 
495;  Ante,  §  2G4. 

2  Hazard  v.  Agricultural  Bank,  11  Eob.  La.  326;  St.  Louis  Perpetual  Ins.  Co. 
V.  Cohen,  9  Mo.  417. 

3  Abernathy  v   Whitehead  69  Mo.  28. 

4  Albany  City  Iiis.  Co.  v.  Whitney,  70  Pa.  St.  248. 


15  GARXISIIMENT,  GENERALLY    CONSIDERED.         §    332 

(llsturbcd  by  the  officer  who  serves  the  writ.^  The  service  of 
siimmon.s  niiikcs  the  garnishee  liable  for  the  value  of  all  de- 
feiulant's  [)roperty  In  his  possession  at  the  time,  or  coming  to 
his  possession  up  to  the  time  of  answer  ;*"  and  his  right  to  the 
uuintcrru[»tcd  possession,  subject  to  the  order  of  the  Court,  is 
commensurate  with  the  liability  imposed  upon  him. 

§  332.  The  Nature  and  Object  of  the  Proceeding  against 
Garnishee. — Although  the  plaintiff  does  not  necessarily  pro- 
ceed against  a  garnishee  as  an  adversary,  the  contest  before 
the  close  may  be  narrowed  down  to  a  question  of  conflicting 
right  between  them.  But  whether  it  ever  assumes  this  feature 
or  not,  for  all  the  purposes  of  a  determination  of  the  rights  of 
the  parties,  the  proceeding  is  regarded  as  a  suit-^  It  is  so 
held  in  the  United  States  Circuit  Court  for  the  district  of  Ar- 
kansas, for  the  purpose  of  determining  a  question  of  jurisdic- 
tion fixed  by  the  residence  of  the  respective  parties,  and  it  was 
decided  that  garnishment  issued  out  of  the  United  States 
Court,  in  an  action  where  the  ground  of  jurisdiction  was  that 
plaintiff  and  defendant  were  residents  of  different  States,  could 
not  be  served  upon  a  garnishee  resident  within  the  same  State 
as  the  plaintiff.^  The  reasons  for  thus  holding  assigned  by 
the  Court  were,  that  the  objects  and  purposes  of  the  proceed- 
ing contemplated  a  legal  investigation  by  substantially  the 
same  means,  using  the  same  instrumentalities  employed  in  an 
ordinary  action  between  plaintiff  and  defendant.  The  gar- 
nishee was  entitled  to  his  day  in  Court ;  there  were  issues  of 
fact  to  be  tried,  proper  for  submission  to  a  jury  ;  and  the  result 
aimed  at  was  a  judgment  against  the  garnishee,  with  all  its 
usual  incidents.  The  claim  that  it  was  merely  a  part  of  the 
execution  process  was  rejected.^  But  it  was  held  otherwise  in 
the  State  of   Pennsylvania,"^  where  the  question  was  one  of 

SDennistoun  v.  N.  Y.  etc.  Co.,  6  La.  An.  782;  Scholfield  v.  Bradlee,  8  La. 
495;  Mattingley  v.  Boyd,  20  How.  128. 

6  Kennedy  v.  Brent,  6  Cranch,  187 ;  Franklin  Ins.  Co.  v.  West,  8  Watts  &  S. 
(Pa.)  350. 

1  Delacroix  v.  Hart,  24  La.  An.  141. 

2Tunstall  v.  Wortbington,  Hempstead  (C.  C.)  662;  Middleton  Paper  Co.  v. 
Eock  River  Paper  Co.,  19  Fed.  Rep.  252. 

3  Tunstall  v.  Wortbington,  Hempstead  (C.p.)  662. 

*  Kidderlin  v.  Myer,  2  Miles,  242. 


§    332  GARNISHMENT.  GENERALLY    CONSIDERED.  16 

privilege  of  a  foreign  consul  to  be  sued  only  in  the  Federal 
Courts,  and  he  was  summoned  as  garnisliee  in  a  State  Court. 
In  Alabama  the  proceeding  by  garnishment  was  held  to  be  a 
suit,  and  consequently  the  summons  could  not  be  served  with 
effect  upon  an  administrator,  under  a  statute  forbidding  the 
commencement  of  suits  against  an  administrator  in  his  repre- 
sentative capacity,  until  six  montlis  after  the  grant  of  letters 
of  administration.^  Garnishment  certainly  possesses  most  of 
the  characteristics  of  a  suit.  While  it  Is  true  that  the  full  ben- 
efit of  the  jjroceeding  may  be  enjoyed  by  the  plaintiff  without 
any  contest  with  the  garnishee,  the  same  is  true  of  a  direct 
action  against  a  debtor.  The  latter  may  confess  judgment  and 
interpose  no  obstacles  to  a  recovery.  The  course  of  proceed- 
ings is  the  same,  subject  to  the  control  of  circumstances,  the 
only  difference  between  the  two  being  one  of  likelihood.  It  is 
less  probable  that  the  plaintiff  and  garnishee  will  have  dis- 
puted facts  to  litigate,  than  that  there  will  be  an  active  contest 
between  plaintiff  and  defendant ;  but  the  law  makes  as  ample 
provision  for  the  one  event  as  the  other.  The  means  provided 
are  as  a{)t  for  the  purpose  of  exacting  satisfaction  from  an  unwil- 
ling party,  as  from  one  who  acknowledges  plaintiff's  right 
without  question,  and  the  end  of  the  proceedings  Is  the  same 
in  either  case — a  judgment  upon  which  execution  will  Issue,  to 
be  made  out  of  the  goods,  chattels,  effects,  and  real  estate  of 
the  judgment  debtor.^  True,  the  surrender  of  the  property  of 
the  original  defendant,  or  the  payment  into  Court  of  the 
amount  of  garnishee's  Indebtedness  to  such  defendant,  will  dis- 
charge the  garnishee  from  liability  to  plaintiff  ;  but  this  sur- 
render is  a  duty  to  be  enforced  by  ample  compulsory  means. 
A  failure  to  comply  with  the  just  demands  of  the  2)laintiff  will 
subject  the  garnishee  to  a  judgment  as  general  as  that  which 
plaintiff  has  against  his  own  debtor.  And  the  action  or  pro- 
ceeding possesses  all  these  characteristics  of  a  suit  against  the 
garnishee,  whether  the  garnishment  be  In  aid  of  the  original 
action  against  the  plaintiff's  debtor,  or  Is  resorted  to  as  the 
means  of  enforcing  the  judgment  obtained  by  ordinary  process. 
In  either  event  the  object  of  the   proceedings  is  to  reach  the 

6  Moore  v.  Stainton,  22  Ala.  831. 
8  Post,  Ch.  XLnL 


17  GARNISHMENT,  GENERALLY    CONSIDERED.         §    333 

debtor's  effects  in  the  hands  of  the  third  party,  and  the  mat- 
ter to  be  determined  by  the  trial  is  whether  the  garni.shee  has 
any  such  debtor's  effects,  which  are  subject  to  execution  and 
attachment,  and  to  render  them  subject  to  the  judf!;mcMt.  It 
is  difScult  to  see  why  a  proceeding  involving  so  much  should 
not  be  called  a  suit. 

§  333.  The  Proceeding  purely  Statutory. — The  liabilities 
imposed  and  the  rights  secured  by  this  proceeding  are  regu- 
lated entirely  by  statute.  The  universality  of  this  means  of 
enforcing  demands  within  the  United  States  does  not  bring  it 
within  the  rules  of  construction  that  govern  actions  founded 
upon  the  common  law.  Its  adoption  in  the  several  States  and 
Territories  is  due  entirely  to  legislation,  and  it  has  only  been 
affected  by  judicial  decisions  as  the  Courts  have  undertaken 
to  construe  the  statutes  by  which  it  was  made  a  part  of  the 
law.  It  cannot  be  resorted  to,  except  in  cases  where  it  is  ex- 
pressly authorized;  and  when  its  statutory- limits  have  been 
reached  without  effecting  the  purpose  for  which  it  was  invoked, 
the  Courts  cannot  extend  its  operations  into  new  fields,,  or  con- 
trive new  means  of  rendering  it  applicable  to  the  exigencies 
of  the  particular  case.-'  Thus,  where  the  statute  prescribes 
that  the  effects  and  credits  of  the  debtor  in  the  hands  of  the 
garnishee  at  the  time  of  the  service  of  the  statutory  warning 
upon  him,  and  up  to  the  date  of  his  answer,  shall  be  held  sub- 
ject to  the  judgment,  he  may,  with  perfect  security,  answer  at 
once,  unless  it  is  otherwise  provided ;  and  cannot  be  held  for 
property  or  money  subsequently  coming  to  his  hands,  or  debts 
subsequently  contracted,  even  though  the  receipt  of  such  prop- 
erty or  the  incurring  of  such  indebtedness  to  the  defendant  in 
attachment  be  contemplated,  or  expected  at  the  time  he  is 
summoned  to  answer.^  The  Court  cannot  compel  the  gar- 
nishee to  take  any  measures  to  ascertain  the  facts  in  respect  to 
which  he  is  called  upon  to  answer,  beyond  those  provided  for 
by  statute.  If  he  has  in  possession  a  trunk  or  other  recepta- 
cle, containing,  or  supposed  to  contain,  money  or  valuables,  the 

iMay  V.  Baker,   15  HI.  90;  Parker  v.  Farr,  2  Browne  (Pa.),  331;  Wolf  v. 
Tappan  5  Dana,  361. 
2  Bliss  V.  Smith,  78  111.  359. 
n.  Attach.— 2. 


§    333  GAENISHMENT,  GENERALLY    CONSIDERED.  18 

property  of  the  defendant  In  attachment,  or  judgment  debtor, 
and  the  same  is  secured  by  a  lock,  the  garnishee  is  under  no 
obligation  of  his  own  motion  to  break  the  lock,  in  order  to  be 
able  to  answer  as  to  the  contents,  nor  can  the  Court  order  him 
to  do  so.^  This  is  not  saying,  however,  that  in  every  instance 
the  garnishee  would  be  excused,  where,  after  garnishment,  he 
surrenders  to  defendant  the  possession  of  a  package  containing 
attachable  property,  merely  because  he  did  not  know  its  value, 
and  held  the  same  only  as  gratuitous  bailee.^  Nor  does  this 
limitation  upon  the  power  of  the  Court  over  the  garnishee  af- 
fect the  right  of  the  officer  to  seize  the  property  of  defendant, 
and  for  that  purpose  break  open  the  safe,  box,  or  other  recep- 
tacle in  which  it  is  contained.^  But  when  the  means  of  gain- 
ing possession  by  the  officer  are  inadequate  to  that  end,  the 
garnishee  process  cannot  be  resorted  to  for  the  purpose  of  sup- 
plying the  omission  in  the  statute. 

Where  the  answer  of  the  garnishee  is  rendered  impossible 
by  his  death,  there  is  no  power  outside  of  the  statute  to  sup- 
ply his  place  by  substituting  his  personal  representatives  as 
the  third  narty.^ 

The  effect  of  the  judgment  cannot  be  enlarged  or  extended 
by  imjdication  beyond  its  statutory  limits.  It  creates  no  lien 
upon  the  garnishee's  estate,  when  he  dies  pending  the  action  ; 
nor  does  it  give  the  attaching  creditor  any  preference,  as  a 
creditor  of  the  garnishee,  over  other  creditors  of  the  same  de- 
fendant." The  garnishee,  except  when  the  statute  otherwise 
provides,  cannot  avail  himself  of  the  bond  in  attachment  given 
for  the  protection  of  defendant.^ 

In  Illinois,  at  least,  it  is  held  that,  in  the  absence  of  express 
authorization  by  statute,  garnishment  cannot  be  resorted  to  by 
the  judgment  plaintiff  to  make  the  amount  of  the  judgment 
against  the  garnishee.  The  debtors  of  such  garnishee  cannot 
be  summoned  to  answer  for  their  indebtedness  to  the  garnishee, 

«  Gregg  w.  Nilson,  8  Phila.  91;  Bottom  v.  Clark,  7  Cush.487. 

*  Layless  v.  Hodges,  44  Ga.  647. 

fi  United  States  v.  Graff,  G"  Barb.  304. 

6  Tate  V.  Morehead,  65  N.  C.  681. 

7  Parker  v.  Parker,  2  Hill  Cli'y  (S.  C),  35;  Parker  v.  Farr,  2  Browne  (Pa.), 
331. 

8  Hays  V.  Anderson,  57  Ala.  374;  Rounds  v.  Hammer,  Id.  342. 


19  GARNISHMENT,  GENERALLY   CONSIDERED.         §    334 

even  after  he  has  become  the  judgment  debtor  of  the  original 
plaintiff.9 

§  334.  Garnishment  unaided  by  Equity. — There  is  sucli  a 
thing  as  attachment  in  chancery  proceedings,  which  is  author- 
ized by  the  statutes  of  some  of  the  States.  There  is  also  the 
Creditor  s  Bill,  and  a  proceedhuj  hi  the  nature  of  a  creditor  s 
hill — the  first  of  which  is  employed  for  the  purpose  of  reach- 
ing the  effects  of  decedents,  and  the  other  for  rendering  subject 
to  unsatisfied  judgments  the  concealed  effects  of  the  judgment 
debtor.^  These,  except  where  they  are  statutory,  are  exclu- 
sively within  the  domain  of  equity  juris])rudence,  and  have  a 
process  peculiar  to  themselves,  for  bringing  tliird  parties  in 
possession  of  the  debtor's  property  or  credits  before  the  Court, 
to  render  an  account  of  their  holdings,  that  it  may  be  applied 
in  satisfaction  of  the  creditor's  demand.  But  the  slight  analogy 
between  these  two  modes  of  procedure  never  brings  the  process 
of  garnishment,  as  prescribed  by  statute  and  a  part  of  the  at- 
tachment law,  for  the  purpose  of  enabling  creditors  by  sum- 
mary means  to  secure  the  payment  of  legal  demands,  within 
the  protecting  care  of  a  Court  of  Equity."  There  is  a  general 
rule  that  a  right  or  power  conferred  by  statute  cannot  be  aided 
in  equity,  where  it  fails,  because  the  statute,  according  to  strict 
construction,  has  not  been  closely  followed.^  Courts  of  Equity 
will  not  lend  their  aid  to  carry  into  effect  the  incomplete  exe- 
cution of  statutory  powers,  that  have  for  their  object  the  in- 
voluntary transfer  of  property.^  These  rules  apply  to  statutory 
proceedings  of  all  kinds,  and  with  special  appropriateness  to 

9  Bigelo-w  V.  Andress,  31  111.  322. 

^  Hitherto  I  have  taken  it  for  granted  that,  except  where  the  statute  author- 
ized attachments  to  issue  out  of  Courts  of  Chancery,  the  proceeding  was  strictly 
legal,  na  distinguished  from  equitable.  But  though  this  doctrine  is  quite  gen- 
eral, I  find  an  instance  at  least  where  it  is  laid  down  that  "Foreign  attach- 
ment or  trustee  process  is  regarded  as  a  species  of  equitable  action." — Stedman 
V.  Vickery,  42  Me.  lo2. 

2  Nor  does  the  attachment  law  take  away  the  jurisdiction  in  equity  to  pursue 
this  peculiar,  extraordinary  process  with  substantially  the  same  end  in  view. 
— King  V.  Pagan,  18  Ark.  583;  Payne  v.  Ballard,  723  Miss. 88;  Lane  v.  Marshall, 
1  Heisk.  30. 

3  Stewart  v.  Stokes,  33  Ala.  494;  Gridley  v.  Phillips,  5  Kan.  349;  Smith  v. 
Bowes,  38  Md.  463;  Kearney  v.  Vaughn,  50  Mo.  284. 

4  Gridley  v.  Phillips,  5  Kan.  349. 


§    334  GARNISHMENT,  GENERALLY    CONSIDERED. 


20 


attachments.     Even  where  the  process  of  garnishment  was  by 
statutory  authority  issued  out  of  a  Court  of  Chancery,  it  was 
hekl  that  the  Court  coukl  not,  in  response  to  the  prayer  of  a 
supplemental  bill  in  which  the  bankruptcy  of  the  garnishee 
was  alleged,  together  with  the  fact  that  he  was  disposing  of 
his  effects,  and  would  ultimately  escape  liability,  issue  a  re- 
straining" order  to  prevent  the  payment  of  money  to  such  gar- 
nishee.    The  power  to  enjoin  such  payment  was  not  given  by 
the  statute,  and  the  Court  could  not  exercise  it  in  aid  of  the 
statutory  proceeding.^     Injunction  is  a  purely  equitable  rem- 
edy, and  garnishment  a  purely  statutory  one ;  and  when  the 
latter  is  ineffectually  employed,  by  reason  of  some  inherent  in- 
sufficiency, it  cannot  be  eked  out  by  the  former.^     Where  the 
process  of  garnishment  is  not  specially  authorized  In  chancery 
proceedings,  it  cannot  be  so  employed.^    And  as  a  general  rule, 
the  powers  of  a  Court  of  Equity  cannot  be  invoked  in  aid  of 
garnishment,  to  restrain  the  garnishee  from  disposing  of  his 
property  in  anticipation  of  the  judgment.     But  to  this,  as  to 
almost  all  other  statements  of  doctrine  in  connection  with  the 
attachment  law,  there  are  exceptions.^     To  hold  that  a  Court 
of  Equity,  or  a  Court  in  the  exercise  of  Its  equity  powers,  may 
Interfere  to  restrain  the  garnishee  from  disposing  of  his  prop- 
erty, in  anticipation  of  the  judgment  which  may  be  had  against 
him,  seems  reasonable.  In  view  of  the  doctrine  that  the  proceed- 
ing against  the  garnishee  is  a  suit,  and  that  its  objects  are  to 
obtain  a  judgment  enforcible  In  the  same  manner  as  a  judg- 
ment obtained  In  a  direct  action.^     But  It  Is,  nevertheless,  an 
exception  to  the  principle  that  so  largely  governs  such  Courts, 
that  equity  will  not  undertake  to  carry  Into  effect  statutory 
powers.     The  garnishment,  as  we  have  seen,  gives  no  specific 
lien.     Where   credits    are  thus  attached,  the    garnishee  will 
be  discharged  on  payment  of  the  debt  due  from  him  to  the  de- 
fendant, or  that  due  from  the  defendant  to  plaintiff.^''     Where 
propei'ty  Is  held  by  him,  either  payment  or  surrender  of  the 

fi  Wolf  V.  Tappan,  5  Dana,  361. 

6  Arthur  v.  Batte,  42  Tex.  159. 

7  Jones  V.  Huntington,  9  Mo.  249. 

8  Moore  V.  Kidder,  55  N.  H.  488.  -: 

9  Svpra,  §  332. 

10  Post,  §§  508,  510. 


21  GARNISHMENT,  GENERALLY   CONSIDERED.  §    335 

property  will  discharge  him.'^  The  only  security  which  the 
stiitiitory  process  provides  is  a  judgment  against  garnishee, 
which  makes  him  a  sort  oi judgment  surety,  as  payment  of  the 
principal  judgment  against  the  original  defendant  is  a  satisfac- 
tion of  both.^^  It  is  not  a  complete  substitution  of  the  liability 
of  the  garnishee  for  that  of  his  immediate  creditors  ;  fur  tlie 
liability  of  the  latter  still  continues.  This  condition  of  things 
is  so  clearly  a  creature  of  the  statute,  that  to  hold  where  the 
threatened  failure  of  the  security  imperils  plaintiff's  remedy, 
equity  will  step  in  and  provide  safeguards  which  the  statute 
has  omitted,  seems  equivalent  to  placing  the  entire  proceeding 
under  equitable  protection,  and  abrogating  the  doctrine  that 
equity  will  not  use  its  extraordinary  powers  in  aid  of  a  statu- 
tory riglit. 

Where  the  interest  of  one  of  the  members  of  a  partnership 
was  attached  by  garnishment  of  his  copartner,  it  was  held  that 
the  attaching  creditor  could  not  maintain  a  bill  in  equity  against 
the  iiarnishee,  for  an  accountlno;  to  ascertain  the  extent  of  the 
defendant's  interest.'"^  But  where  the  attachment  is  by  seizure 
and  sale  of  the  interest  under  execution,  the  purchaser  thereby 
becoming  a  co-tenant,  would  not  be  restricted  in  his  means  of 
bringing  about  a  division. of  the  property,  by  the  fact  that  his 
title  was  acquired  at  execution  sale. 

§  335.  Equitable  Rights  not  subject  to  Garnishment. — 
AVhere  law  and  equity  are  separately  administered,  either  by 
distinct  Courts,  or  by  Courts  that  preserve  the  distinction  in 
their  modes  of  procedure  in  the  different  branches  of  jurispru- 
dence, the  process  of  garnishment  Is  only  employed  to  secure 
legal  demands  ;  and  In  proceeding  to  judgment,  the  Court  avIU 
only  take  cognizance  of  demands  of  this  character  that  are  ow- 
ing by  the  garnishee  to  the  attachment  defendant,  or  the  judg- 
ment debtor.  The  first  branch  of  this  proposition — that  only 
legal  demands  against  defendant  can  be  secured  by  garnish- 
ment. Is  as  generally  true,  as  It  Is  that  attachments  can  only  be 
levied  by  seizure  of  property  in  support  of  such  demands.^ 

11  Post,  §  508. 

12  Post,  §§  508-510. 

13  Treadwell  r.  Brown,  43  N.  H.  290. 

1  Ante,  §§  4,  20  ;  Hut  v.  Coon,  9  Ind.  537  ;  Netler  v,  Chicago  Board  of  Trade, 
12  111.  App.  607.    • 


§    335  GAEXISHMEXT,  GEXEEALLT    CONSIDERED.  22 

"\rhen  the  debt  owing  by  the  garnishee  Is  purely  equitable 
in  its  nature,  there  is  a  striking  Inaptitude  in  this  process  for 
ascertaining  the  extent  of  such  Indebtedness,  and  reducing  it 
to  judgment  In  favor  of  plaintiff,  who  holds  a  legal  demand 
against  the  defendant.  The  Courts  generally  hold  that  where 
the  garnishee  or  trustee  process  is  authorized  by  the  statutes 
to  secure  "  debts  "  due  the  defendant  in  the  action,  and  apply 
them  in  satisfaction  of  plaintiff's  judgment,  it  means  debts  en- 
forclble  by  action  at  law,  and  not  mere  equitable  demands.^ 

Under  a  statute  providing  that  garnishee  process  might  be 
served  upon  all  persons  "  who  are  in  anywise  indebted  to  the 
defendant,"  the  Court  said  : 

"  We  think  that  a  legal  Indebtedness  is  here  meant ;  such  an 
indebtedness  as  could  be  enforced  in  a  Court  of  Law,  in  an  ac- 
tion brought  by  the  defendant  against  the  garnishee.  This  at- 
tachment proceeding  is  strictly  of  a  legal,  and  not  of  an  equit- 
able, character  ;  and  being  In  derogation  of  the  common  law. 
It  Is  dependent  entirely  upon  the  statute  for  its  support."^  And 
so  It  was  held  in  Alabama,  that  the  defendant's  rights  to  the 
fund  or  property  sought  to  be  condemned  to  the  satisfaction  of 
plaintiff's  judgment  must  be  legal,  as  contradistinguished  from 
equitable.^  Following  the  same  rule,  notwithstanding  the 
law  and  equity  jurisdiction  of  the  Court  in  California,  where  A 
contracted  with  B  to  construct  a  buildino;,  for  which  B  agreed  to 
pay  a  certain  sum  in  Installments  as  the  work  progressed,  and 
C  contracted  with  A  to  do  a  portion  of  the  work  for  a  fixed 
sum,  also  to  be  paid  in  installments  as  his  work  progressed, 
and  A  assigned  to  C  a  part  of  the  money  to  fall  due  from  B, 
equal  to  the  contract  price  of  C's  work,  it  was  held  that  no  such 
legal  demand  existed  In  favor  of  C  against  B,  as  was  liable  to 
garnishment  by  C's  creditor.  And  this  was  for  the  reason 
that  a  debt  not  in  existence  was  not  assignable  at  law,  and  the 
assignment  only  created  an  equity,  if  anything.  In  favor  of  the 
assignee.^     In  reaching  this  conclusion,  although  no  decided 

2  Hoyt  V.  Swift,  13  Vt.  133  ;  37  Am.  Dec.  586;  Clark  v.  Farnum,  7  R.  I.  174. 

3  May  V.  Baker,  15  111.  90  ;  Swann  v.  Summers,  19  W.  Y.  15. 

4  Harrell  v.  ^Yhitmau,  19  Ala.  138.  See,  also,  Folsom  v.  HaskeU,  11  Cush.  470; 
Joliuson  V.  Lamping,  34  Cal.  293  ;  Godden  v.  Pierson,  42  Ala.  370 ;  Massachu- 
setts Xat'l  Bank  v.  Bullock,  120  Mass.  86. 

5  Hassle  v.  God  Is  With  Us  Congregation,  35  Cal.  378.  See,  also,  Field  v.  The 
Mayor  of  Xew  York,  2  Seld.  179. 


23  GARNISHMENT,  GENERALLY   CONSIDERED.  §   336 

opinion  was  expressed  as  to  whether  the  assignment  created  an 
equity  In  favor  of  the  assignee,  the  doctrine  that  C(|uitable 
rights  couhl  be  reached  by  garnishment  was  expressly  disap- 
proved. There  can  be  no  doubt,  however,  where  the  statute 
expressly  declares  that  equitable  demands  are  subject  to  gar- 
nishinent,  they  may  be  so  reached,  and  the  Courts  must  find 
appropriate  means  for  carrying  the  law  into  effect.  But  aside 
from  all  technical  objections  to  the  use  of  this  process  in  such 
cases,  it  is  manifestly  inappropriate  where  the  alleged  indebt- 
edness of  the  garnishee  to  defendant  is  one  growing  out  of  an 
unsettled  partnership  business  between  them.^ 

§  336.  Judgment  against  Garnisliee  depends  on  Regularity 
of  Process. — The  liability  to  plaintiff  which  results  from  the 
service  of  process  of  garnishment,  can  be  imposed  in  no  other 
way  upon  the  garnishee.  We  have  already  had  occasion  to 
state  that  his  position  between  the  parties  is  that  of  a  disinter- 
ested stakeholder.^  He  is  neither  required  nor  permitted  to 
influence  the  result  by  any  action  on  his  part.  His  willingness 
or  his  unwillingness  to  be  served  with  process,  or  his  friendli- 
ness or  unfriendliness  to  either  of  the  principal  parties,  makes 
no  difference  one  way  or  the  other.  He  may  feel  ever  so  favor- 
ably inclined  towards  plaintiff's  suit,  or  desire  ever  so  earnest- 
ly to  see  defendant  prevail ;  but  he  must  act  impartially  and 
seek  to  advance  the  interest  of  neither,  except  in  so  far  as  it 
involves  the  security  of  his  own  rights.^  Although  the  pro- 
ceeding against  him  is  a  suit  in  which  he  may  occupy  a  position 
adverse  to  plaintiff  in  all  respects,  as  though  he  were  a  defend- 
ant in  the  action  prosecuted  by  plaintiff  in  his  debtor's  name,^ 
he  is  not  in  a  position  to  facilitate  the  progress  of  the  proceed- 
ing by  waiving  process.  Where  the  statute  requires  process  to 
be  jjersonally  served,  in  ord-sr  to  give  the  Court  jurisdiction  to 
render  judgment  against  the  garnishee,  his  voluntary  appear- 
ance without  such  service,  and  answering  interrogatories,  will 
not  be  taken  as  the  legal  equivalent  of  such  service.^     The 

6  Burnham  v.  Hopkinson,  17  N.  H.  259;  Driscoll  v.  Hoyt,  11  Gray,  404;  Shee- 
dy-u.  Second  Nat'l  Bank,  62  Mo.  17. 

1  Supra,  §  326. 

2  Citizens'  Bank  v.  Payne,  21  La.  An.  380. 
8  Supra,  §  332. 

4  ScLindler  v.  Smith,  13  La.  An.  476.    But  see  Eoy  v.  Heard,  38  Miss.  544. 


§    336  GARNISHMENT,  GENERALLY    CONSIDERED.  24 

plaintiff  and  defendant  may  not  be  the  only  parties  interested 
in  the  disposal  of  tlie  fund  in  the  garnishee's  hands.  There 
inav  be  others  who  have  a  right  to  ques'.ion  the  validity  of 
proceedings  taken  to  condemn  it  to  the  payment  of  the  debt 
sued  on  in  the  principal  action.  Thus,  where  there  had  been 
an  assignment  of  the  debt  owing  by  the  garnishee  to  the  de- 
fendant, it  was  held  that  the  garnishee's  voluntary  waiver  of 
service,  by  endorsement  on  the  petition,  would  not  authorize  a 
judgment  against  hira  that  would  be  binding  upon  the  assignee.^ 
Such  voluntary  acceptance  of  service  has  also  been  held  a 
iiullit}',  as  against  attaching  creditors,  in  whose  suits  jurisdic- 
tion was  regularly  obtained  by  the  service  of  process.*^  It  is 
not  even  sufficient  that  the  garnishee  has  been  served  with 
notice  or  summons,  or  whatever  the  process  may  be  styled,  if 
he  is  not  served  with  substantial  regularity,  in  a  case  where  the 
attachment  suit  is  pending  under  a  live  writ.  When  the  re- 
turn day  of  the  writ  of  attachment  is  passed,  it  has  lost  its  vi- 
tality, and  has  no  longer  any  office  to  perform  as  the  basis  of 
judicial  proceedings."  Consequently,  when  the  garnishment 
process  is  served  after  the  return  day,  and  the  garnishee  a[)- 
pears  and  answers  thereto,  liis  a[)pearance  will  be  regarded  as 
voluntary,  and  in  general  the  judgment  rendered  in  pursuance 
of  such  appearance  will  be  set  aside  at  the  instance  of  other  credi- 
tors of  the  same  defendant.^  But  wliere  the  return  day  named  in 
the  writ  was  by  a  clerical  error  a  date  prior  to  that  on  which  the 
writ  was  issued,  it  was  held  that  this  error  might  be  corrected, 
and  the  appearance  would  authorize  judgment,  the  service 
being  prior  to  the  return  day  intended.^  Where  the  garnishee 
was  a  C(n-[)oration,  and  the  statute  required  service  of  process 
to  be  made  on  one  of  several  designated  officers,  it  was  held 
that  the  acceptance  of  service  by  the  attorney,  he  not  being  one 
of  the  officers  upon  whom  service  might  be  legally  made,  was 

5  Helxil  V.  Amazon  Ins.  Co.,  33  Mich.  400.  Contra,  Calioou  v.  Morgan,  38  Vt. 
234. 

6  Scliiudler  v.  Smith,  18  La.  An.  476;  Phelps  v.  Bougton.  27  La.  An.  592;  Cit- 
izens' Hank  v.  Payne,  21  La.  An.  380;  Hodges  v.  Graham,  25  La.  An.  ;-!80; 
AVooilfolk  V.  Whitworth,  5  Coldw.  (Tenn.)  5G1;  Hobel  v.  Amazon  Ins.  Co.,  33 
Mich.  400. 

"  Ante.  §  140.  et  seq.;  Post,  Ch.  XVL 

8  Southern  P)ank  v.  McDonald,  46  Miss.  31. 

9  Welluver  o.  Soule.  30  Mich.  48L 


25  GARNISHMENT,  GENERALLY   CONSIDERED.         §   337 

insufficient  to  give  the  Court  jurisdiction  of  the  corporation.'" 
This  results  from  the  strict  construction  to  which  i)roceedIn28 
of  this  kind  arc  subjected,  as  statutory  means  of  devesting  pro- 
prietary rights.  But  it  must  not  be  understood  that  when  the 
party  indebted  to  the  defendant,  in  order  to  enable  the  plain- 
tiff to  secure  his  debt,  voluntarily  informs  him  of  the  existence 
of  the  credit  in  favor  of  the  defendant,  and  of  his  own  willing- 
ness to  answer  therefor,  the  garnishment,  which  follows  the 
suggestion  of  garnishee,  will  be  rendered  invalid  by  reason  of 
his  active  sympathy  with  the  plaintiff.  This  is  not  the  kind  of 
action  that  violates  the  neutrality  of  the  third  party.  If  plain- 
tiff acts  on  such  information,  and  the  holder  of  defendant's  at- 
tachable property  or  credits  is  regularly  sun)nioned  as  gar- 
nishee, judgment  may  be  entered  against  him,  as  In  any  other 
case,  and  will  be  valid,  notwithstanding  the  process  was  issued 
at  his  own  suggestion. ^^ 

The  doctrine  as  to  the  voluntary  acceptance  of  service  and 
waiving  Irregularities,  like  most  other  features  of  the  attach- 
ment law,  is  subject  to  exception,  or  rather,  contradiction,  and 
is  so  completely  under  statutory  control  that  there  is  no  com- 
mon ground  upon  Avhich  conflicting  authorities  may  be  brought 
to  the  test  of  principle.  It  is  held  in  Vermont  that  the  accep- 
tance of  service  by  a  trustee  (garnishee)  will  hold  the  fund  in 
his  hands  as  against  a  subsequent  assignee. ^^ 

■§  337.  Where  Garnishee's  Position  is  Antagonistic  to  both 
the  Principal  Parties. — Reference  has  been  made  to  a  possible 
condition  of  things,  where  the  garnishee's  lack  of  interest  in 
the  result  of  the  contest  between  plaintiff  and  defendant  is  real, 
for  the  reason  that  he  claims  the  property  sought  to  be  reached 
adversely  to  both.'  In  such  cases  as  this,  all  his  activity  will 
be  put  forth  in  his  own  behalf.  So,  when  he  denies  being  in- 
debted to  the  defendant,  he  may  be-  drawn  into  a  contest  with 
each  in  succession.  And  where  his  denial  of  indebtedness  or 
possession  of  defendant's  property  is  acquiesced  in  by  defend- 
ant, the  garnishee  must  make  the  issue  against  the  plaintiff, 

M  Northern  Cent.  R.  Co.  v.  Rider,  45  Md.  24;  Post,  §  504. 

11  But  the  garnishee  must  act  in  good  faith.— Smith  v.  Dickson,  58  Iowa,  444. 

12  Cahoon  v.  Morgan,  38  Vt.  234. 
1  Supra,  §  326. 


§    338  GAP.NISHMENT,  GENERALLY    CONSIDERED.  26 

and  contest  it  at  his  own  expense.  The  defendant  Is  under  no 
obligation  to  protect  every  one  who  may  be  garnished  in  the 
suit  against  himself.^  The  antagonism  of  garnishee  may  also 
arise  from  the  fact  that  his  possession  of  the  money  or  prop- 
erty of  defendant  is  wrongful.  A  person  who  obtains  posses- 
sion of  proj^erty  which  belongs  to  another,  and  which  he  has 
neither  legal  nor  equitable  right  to  retain,  may  be  garnished  by 
a  ci'cditor  of  the  owner  as  effectually  as  though  he  held  the 
property  with  such  owner's  consent.^  So,  where  the  property 
of  the  defendant  was,  without  his  consent,  placed  in  the  hands 
of  an  agent  of  one  of  his  creditors,  as  security  for  a  debt,  it 
was  very  justly  held  that  the  agent  or  the  creditor,  if  in  pos- 
session thus  wrongfully,  could  be  garnished  at  the  suit  of  an- 
other creditor,  and  would  be  bound  by  the  judgment  to  the 
same  extent  as  though  such  possession  was  held  under  contract 
with  the  owner.*  Although  the  garnishee  can  only  be  required 
to  answer  as  to  debts  due  on  contract,  or  liquidated  demands 
such  as  may  be  reached  in  an  action  of  deht^  it  is  not  in  every 
case  essential  that  possession  of  the  property  to  be  attached  in 
the  hands  of  the  garnishee  should  be  subject  to  a  contract, 
either  express  or  implied.  But  plaintiff  can  recover  no  judg- 
ment against  such  garnishee  for  damages  for  the  wrongful  tak- 
ing or  detention  of  such  property.  This  is  a  right  of  action 
still  reserved  to  the  party  who  suffered  the  wrong,  under  the 
principle  that  only  contract  obligations  are  regarded  as  dthts 
or  credits.  Property,  however,  is  attachable,  irrespective  of 
the  circumstances  of  its  acquisition  or  present  possession.  The 
thing  itself  is  reached  by  process  of  garnishment,  as  well  as  by 
direct  seizure.  The  only  difference  is  that,  in  case  of  seizure, 
there  is  a  specific  lien  which  will  follow  the  property  into  other 
hands,  while  in  case  of  garnishment,  the  lien  only  exists  as 
against  the  garnishee  and  parties  with  notice.  The  garnishee's 
responsibility  becomes  that  of  a  custodian  of  the  property  at- 
tached, and  is  accepted  in  lieu  of  actual  possession. 

§  338.    The  effect  of  Gamislimeiit  regularly  served. — In 
remarking  the  distinction  between  attachment  by  seizure  and 

2  Post,  §  403. 

3  De  Graff  v.  Thompson,  24  Minn.  452. 

4  Sweet  V.  Brown,  5  Pick.  178. 


27  GARNISHMENT,  GENERALLY   CONSIDERED.         §    338 

that  by  o;arnishee  process,  it  has  been  stated  in  a  former  sec- 
tion hereof,  that  by  garnishment  no  fipecific  lien  was  obtained 
upon  the  property  in  garnishee's  possession.^  Yet  it  cannot  be 
said  that  attachment  by  this  metbod  creates  no  lien,  f(jr  tbsit 
wonhl  be  equivalent  to  saying  tliat  it  was  no  attachment.^  So 
far  as  it  goes  in  this  direction,  the  attachment  is  quite  as  ef- 
fectual by  this  method  as  by  seizure  and  actual  custody.^  The 
difference  lies  in  the  fact  that  by  seizure  the  lien  attaches  to 
the  thing  itself,  so  far  as  defendant's  interest  therein  extends, 
wdiile  by  garnishment,  only  defendant's  interest  in  the  thing  is 
affected  so  as  to  prevent  its  transfer.  Seizure  deprives  the  de- 
fendant for  the  time  being  of  the  possession.  Garnishment 
leaves  the  actual  possession  unaffected, except  that  it  renders  the 
garnishee  liable  for  the  consequences  of  allowing  the  property 
to  pass  into  the  custody  of  defendant.  By  the  service  of  the 
process  of  garnishment,  a  lien  is  obtained  on  defendant's  title 
to  the  property  or  credit  in  the  hands  of  the  garnishee.  By 
seizure  a  lien  is  obtained,  which  is  only  enf orcible  by  judgment 
and  sale  of  the  property  seized*^ ;  but  by  garnishment,  the  lia- 
bility of  garnishee  continues,  although  he  has  lost  the  posses- 
sion of  the  property,  or  surrendered  it  to  defendant,  and  the 
lien  may  be  enforced  against  him.^  Any  attempted  transfer 
or  incumbrance  of  the  title  by  defendant,  after  service  on  the 
garnishee,  Avill  be  as  ineffectual  to  disturb  the  rights  acquired 
by  the  plaintiff,  as  though  the  property  had  been  actually 
seized  by  the  officer.^  This  is  what  constitutes  the  lien  upon 
the  title.  That  there  is  somethins:  more  than  the  general  lia- 
bility  of  the  custodian,  is  apparent  from  the  judgment  entered 
against  the  garnishee  in  case  of  his  default.  Thus,  it  is  laid 
down  in  Layman  v.  Beam,'^  that  the  judgment  should  not  be 

i^wpm,  §325. 

2  Martin  v.  Foreman,  18  Ark.  249;  Tindell  v.  Wall,  Busbee  (Law.),  3. 

3  Kennedy  v.  Brent,  6  Cranch,  187;  Layman  u.  Beam,  6  Whart.  (Pa.)  181; 
Franklin  Ins.  Co.  v.  West,  8  Watts  &  S.  (Pa.)  350;  Talbot  v.  Harding,  10  Mo. 
350;  Parker  r.  Kinsman,  8  Mass.  436;  Burlingame  v.  Bell,  16  Mass.  318;  Sweet 
V.  Brown,  5  Pick.  178;  Freeman  u.  Grist,  1  Devereux  (N.  C),  217;  Blaisdell  v. 
Ladd,  14  N.  H.  129;  Eenneker  v.  Davis,  10  Rich  Eq.  (S.  C.)  289;  McCobb  v.  Ty- 
ler, 2  Cranch  C.  C.  199. 

4  Ante,  §  25. 

6  Kennedy  v.  Brent,  6  Cranch,  187. 
6  Hicks  V.  Gleason,  20  Vt.  139. 
T  6  Whart.  (Pa.)  181. 


§    338  GARNISHMENT,  GENERALLY    CONSIDERED.  28 

against  cfarnisliee  to  be  levied  of  his  goods  and  chatteU,  etc., 
as  it  would  run  in  case  of  a  direct  action  against  him.  It 
should  be,  that  the  plaintiff  have  execution  for  so  much  of  the 
debt  due  by  the  garnishee  to  the  defendant,  attached  in  his 
hands,  as  may  satisfy  the  judgment  of  plaintiff,  with  interest 
and  costs ;  and  if  the  garnishee  refuse  or  neglect,  on  demand 
of  the  Sheriff,  to  pay  the  same,  then  that  the  same  be  levied 
of  the  garnishee's  goods,  lands,  etc.,  according  to  law,  as  in 
the  case  of  a  judgment  against  him  for  his  own  proper  debt, 
and  that  the  garnishee  be  thereupon  discharged  as  against  the 
defendant  of  the  sum  so  attached  and  levied,  etc.  The  judgment 
is  to  the  same  effect,  when,  instead  of  a  debt  due  to  the  defend- 
ant in  the  action,  the  garnishee  has  in  his  possession  specific 
personal  property,  where  this  method  of  attaching  personal 
property  is  authorized  by  statute.  The  garnishee  may  be  held 
liable  for  the  specific  property  or  its  value.^  The  lien,  how- 
ever, is  not  of  the  specific  character  that  follows  the  property 
after  its  surrender  to  defendant.  Thus,  where  a  sheriff",  hav- 
ing in  his  hands  an  execution  in  favor  of  A,  served  a  copy  of 
the  execution  and  notice  of  garnishment  upon  one  who  held 
property  capable  of  manual  delivery,  that  belonged  to  the 
judgment  debtor,  and  subsequently  receiving  an  execution  in 
favor  of  B,  levied  upon  the  same  property  by  actual  seizure, 
and  sold  it  under  the  second  execution,  it  was  held  that  the 
proceeds  should  be  applied  in  satisfaction  of  B's  judgment,  for 
the  reason  that  the  levy  in  his  case  w^as  first  in  time,  and 
no  lien  was  created  by  the  garnishment  in  favor  of  A.® 
There  is,  however,  so  much  of  a  lien  created  by  garnishment, 
that  the  defendant's  control  of  the  property  can  only  be 
exercised  in  subordination  to  the  rights  acquired  by  the  plaintiff 
and  the  garnishee.  No  subsequent  incumbrance  or  written 
transfer  of  title  can  affect  the  plaintiff's  right  to  demand  the 
property  to  be  applied  in  satisfaction  of  his  judgment."^  The 
garnishee  may  also  hold  the  property,  pending  the  suit,  against 
defendant,  and  all  subsequent  pledgees  and  transferees.^^     He 

8  Moore  v.  Holt,  10  Gratt.  284;  "Walcott  v.  Keith,  2  Foster,  196;  Aklrich  v. 
Woodcock,  10  X.  H.  99;  In  re  Glenn  Iron  ^Yo^ks,  17  Fed.  Rep.  324. 

9  Johnson  v.  Gorham,  6  Cal.  195.    But  see  Burlingame  v.  Bell,  16  Mass.  318. 
1°  Biggs  V.  Kounes,  7  Dana  (Ky.)  405. 

"  Hicks  V.  Gleasou,  20  Vt.  139. 


29  GARNISHMENT,  GENERALLY   CONSIDERED.  §    338 

has  a  special  property  in  it,  as  the  officer  would  have  in  case 
of  seizure  under  attachment.  ^^  His  rights  are  such  that  he 
may,  and  in  fact  must,  refuse  to  deliver  the  property  so  held 
to  an  officer  claiminjj  under  another  writ  ajjainst  the  same  de- 
fendant,  as  it  cannot  be  lawfully  taken  from  his  possession 
under  such  process.''^  Nevertheless,  it  has  been  held  that  the 
defendant  may  make  a  valid  demand  upon  his  debtor,  who  has 
been  summoned  as  'garnishee  ;  and  also  that  his  right  to  secure 
the  claim,  by  attachment  or  otherwise,  remains  unimpaired  by 
the  garnishment  proceedings.  But  this  right  is  held  to  exist 
in  subordination  to  any  lien  created  in  favor  of  plaintiff  by 
such  proceedings.^^  Accordingly,  whei-e  the  amount  of  a 
judgment  was  realized  by  the  sheriff  on  execution,  and  while 
the  money  was  in  his  hands,  he  was  summoned  as  garnishee  at 
the  suit  of  a  creditor  of  the  execution  creditor  ;  it  was  held 
that  such  execution  creditor  could  still  maintain  an  action 
against  the  officer,  and  on  recovering  judgment  would  be  enti- 
tled to  the  balance,  after  satisfying  the  demand  of  the  gar- 
nishor, without  any  new  demand. ^'^ 

His  liability  is  such  that  he  cannot,  with  safety  to  himself, 
suffer  the  property  to  go  back  into  the  hands  of  defendant 
from  whom  it  was  received,  even  where  some  one  else  seems 
to  be  the  owner,  until  the  matter  is  determined ;  ^^  for  his  lia- 
bility continues,  irrespective  of  the  manner  in  which  his  pos- 
session is  lost,*'  except  where  the  attaching  creditor,  at  whose 
suit  he  was  garnished,  causes  it  to  be  levied  on  or  taken  from 
his  possession,  under  execution  or  attachment.^^  But  the  dis- 
possession of  garnishee  by  a  wrong-doer  has  been  held  suffi- 
ficient  to  furnish  grounds  for  delaying  the  proceedings,  until 
the  garnishee  could  recover  damages  for  such  wrongful  tak- 
ing.-^^     The  garnishment  does  not  take  effect  upon  the  relations 

12  Ante,  §  175. 

13  Arthur  v.  Batte,  42  Tex.  159. 
1-4  Hicks  V.  Gleason,  20  Vt.  139. 

15  Hicks  V.  Gleason,  20  Vt.  139. 

16  Biggs  V.  Kounes,  7  Dana,  405. 

1"  Dispatch  Line  v.  Bellamy  Mf'g  Co.,  12  K  H.  205;  37  Any.  Dec. 203;  Parker 
V.  Kinsman,  8  Mass.  486;  Farmers'  &  Mechanics'  Bank  v.  Wells,  23  Minn.  475s 

18  Goddard  v.  Hapgood,  25  Vt.  351;  60  Am.  Dec.  272;  Clapp  v.  Rogers,  38  N. 
H.  435 

19  Dispatch  Line  v.  Bellamy  Mf'g  Co.,  12  N.  H,  205;  37  Am.  Dec.  203. 


§    338  GARNISHME^T,  GENERALLY   CONSIDERED.  30 

between  the  garnishee  and  the  debtor,  prior  to  the  service,  and 
wliich  liad  ceased  when  he  was  summoned;  as  where  he  was 
indebted  to  defendant  but  had  paid  the  debt,^  or  held  defend- 
ant's property,  which  he  had  returned  prior  to  service  of  the 
garnishee  process. ^^  Although  the  payment  prior  to  garnish- 
ment was  by  a  check,  which  was  not  presented  until  after  ser- 
vice on  the  garnishee,  it  was  nevertheless  held  that  the  latter 
could  not  be  held  liable.^  The  garnishee  process  is  not  a 
method  contrived  for  following  transfer*  of  property  or  in- 
debtedness, made  prior  to  service,  upon  the  ground  that  such 
transfers  were  intended  to  defraud  creditors,  provided  they  are 
made  for  a  valuable  consideration,  and  are  not  merely  color- 
able. Thus,  where  A  executed  a  note  to  B,  which  B  sold  to 
C,  and  received  the  amount  due  thereon,  of  which  C  notified 
A,  it  was  decided  that  A  could  not  be  held  as  garnishee  in  a 
suit  against  B ;  nor  could  C  be  so  held,  upon  the  ground  that 
the  sale  was  fraudulent,  and  made  to  enable  B  to  abscond  and 
defraud  his  creditors. ^'^  The  garnishment  is  not  retrospective 
in  its  operations,  nor  is  it  generally  prospective  beyond  the 
time  of  answering.^  Ordinarily,  the  garnishee  does  not  be- 
come liable  for  effects  of  defendant  that  come  to  his  possession 
subsequent  to  the  answer.^'  But  to  this  there  are  some  statu- 
tory exceptions.^^  The  limits  within  which  the  operation  of 
the  garnishment  is  confined,  in  respect  to  time,  are  exemplified 
in  the  case  of  Daniels  v.  Meinhard.^'  The  garnishee  being 
discharged  on  his  answer,  for  the  reason  that  it  was  not  trav- 
ersed, and  money  of  the  defendant  subsequently  came  to  his 
hands,  whereupon  it  was  attached  by  garnishment  at  the  suit 
of  another  creditor,  it  was  held  in  substance  that  if  thei'e  was 
a  honafide  assignment  of  the  debt  prior  to  service  in  the  second 
suit,  the  assignee  would  have  a  superior  claim  on  the  fund  to 
either  of  such  attaching  creditors.     The  first  could  not  antici- 

20  Getchell  v.  Chase,  124  Mass.  366. 

21  Bailey  v.  Ross,  20  N.  H.  302. 

22  Getchell  v.  Chase,  124  Mass.  366, 

23  Hutchins  i'.  Hawley,  9  Vt.  295. 

-'■*  And  it  has  been  held,  not  beyond  tbe  time  of  service  on  the  garnishee. 
Branch  Bank  v.  Poe,  1  Ala.  396. 

25  Daniels  v.  Meiuhard,  53  Ga.  359. 

26  Central  Plank  R.  Co.  v.  Sammons,  27  Ala.  380. 
2V  53  Ga.  359. 


81  GARNISHMENT,  GENERALLY    CONSIDERED.         §    338 

pate  the  Indebtedness  of  garnisliec  to  defendant,  nor  the  last 
reach  indebtedness  which  was  extinguished  prior  to  service  of 
process  of  garnishment  in  his  own  case.  Where  a  debtor  made 
an  assig-nment  for  the  benefit  of  creditors,  and  after  the  as- 
signinent  the  assignee  purchased  demands  against  the  as- 
signor at  a  discount,  amounting  to  more  in  the  aggregate 
than  the  value  of  the  effects  assigned,  it  was  held  that  he 
could  not  be  charged  as  garnishee,  in  suits  brought  by  other 
creditors  subsequent  to  his  becoming  a  creditor  of  the  as- 
signor, irrespective  of  whether  the  assigment  was  valid  or 
not.28 

The  rule  of  priority  that  prevails,  as  between  garnishors  and 
assignees,  obtains  to  the  same  extent  between  creditors  at- 
taching the  same  fund  or  property  in  the  hands  of  a  garnishee. 
Being  regular,  they  take  precedence  in  order  of  service,  and 
tlie  garnishee  may  be  held  to  respond  to  either,  as  those  in  ad- 
vance are  satisfied  or  dismissed  without  exhausting  the  fund 
or  property  tittached.^^  And  as  between  attaching  creditors, 
this  order  of  priority  is  not  disturbed  by  the  fact  that  at  the 
time  the  first  was  served  the  officer  had  other  writs  in  his 
hands,  previously  issued.  The  first  served  will  bind  the  gar- 
nishee, regardless  of  the  order  in  which  they  were  issued. ^^ 
Where,  however,  the  service  in  several  cases  is  simultaneous, 
of  writs  issued  at  the  same  time,  the  creditors  would  share 
the  fund  pro  rata^  and  where  the  fund  was  sufficient,  all 
would  be  satisfied.^^  And  where  the  rule  that  in  attach- 
ments issued  at  different  times  and  simultaneously  levied,  the 
creditors  take  priority  according  to  date  of  issue,  the  same 
rule  would  obtain  in  respect  to  garnishments  so  issued  and 
served."^'^  But  all  this  doctrine  of  priority  must  be  taken  sub- 
ject to  the  statutory  exception  thart  compels  rival  attaching 
creditors  to  share  the  proceeds  'pro  rata,  without  reference 
to  the  order  in  which  the  attachments  were  issued,  or  the  gar- 
nishee summoned,  provided  the  judgments  against  the  garni- 

28  Emerson  v.  Wallace,  20  N.  H.  507. 

29  .Tohnson  v.  Griftitli,  2  Crancli  C.  C.  199;  Talbot  v.  Harding,  10  T^Io.  CJO. 

30  McCobb  V.  Tyler,  2  CrancL  C.  0.  199. 

31  PoKl,  §  859. 
82  Ante,  §  32. 


.§    339  GARXISHMENT,  GENERALLY    CONSIDERED.  32 

ehee,  as  well  as  against  the  debtor,  be  rendered  at  the  same 
time.^^ 

§  339.  General  Distribntion  of  Matters  to  be  Considered. — 
The  general  survey  of  the  subject  of  garni&hment,  as  a  dis- 
tinct branch  of  the  law  of  attachment^  in  preceding  sections  of 
this  chapter,  will  have  suggested  to  some  extent  the  natural 
order  in  which  the  subordinate  topics  will  present  themselves 
for  consideration.  There  are  still  matters  to  be  considered 
that  are  of  general  application.  Thus,  the  question  of  parties, 
process,  the  answer,  traverse  of  the  answer,  the  effect  of  judg- 
ment against  the  garnishee,  etc.,  apply  to  proceedings  had  for 
the  purpose  of  charging  the  garnishee,  either  (1)  on  account 
of  property  of  defendant  held  by  him,  or  (2)  on  account  of 
debts  owing  by  him  to  defendant.  It  is  desirable,  as  far  as 
practicable,  to  consider  the  questions  arising  under  each  of 
these  two  last  named  general  divisions  in  their  order,  and  sep- 
arately. But  before  they  ai'e  subjected  to  distinct  treatment, 
there  are  certain  features  of  the  law  applicable  alike  to  each, 
which  should  be  more  fully  discussed  than  heretofore.  That 
which  has  been  hinted  at  will  be  considered  more  at  length, 
and  that  which  was  regarded  as  being  of  a  character  too  special 
to  become  the  subject  of  general  treatment  will  be  specially 
considered. 

83  Freeman  v.  Grist,  1  Dev.  &  Batt.  (X.  C.)  217.  [Where  the  service  upon 
same  garnishees  was  made  in  different  States,  the  Court,  where  last  served,  or- 
dered stay  of  proceedings,  or  a  bond  of  indemnity  to  protect  garnishee. — AVood- 
rufE  V.  French,  6  La.  An.  62.] 


CHAPTER  XXV. 

PARTIES    TO    THE    PROCEEDING. 

§  340.  The  parties  genenxlly,  and  their  relations  to  each  other. 

§  341.  Third  parties — deb'K)rs  of  defendant,  and  parties  in  possession  of  de- 
fendant's projierty. 

§  342.  Private  corporations  and  their  stockholders  as  garnishees. 

§  343.  Foreign  corporations  as  garnishees. 

§  344.  Non-resident  garnishees. 

§  345.  Municipal  corporations  as  garnishees. 

§340.  States — exemption  from  suit. 

§  347.  Officer  of  Court  as  garnishee. 

§  348.  Officer  of  private  corporation  as  garnishee  of  corporation, 

§  349.  Agent  or  servant  of  debtor  as  garnishee. 

§  350.  The  wife  of  defendant  as  garnisliee. 

§  351.  Debtors  and  partners  as  garnishees. 

§  352.  Judgment  debtors  as  garnishees. 

§  333.  Garnishees,  whether  joint  or  several. 

§  354.  Intervenors. 

§  355.  Reference  to  other  chapters. 

§  340.  The  Parties  Generally,  and  their  Relations  to  each 
other. — The  necessary  introduction  of  a  third  party  to  the  pro- 
ceeding by  garnishment,  who  is  variously  styled  garnishee, 
trustee,  and  factor,  has  already  been  noticed.^  It  only  remains 
to  add  a  possible  fourth — the  intervenor.  This  i^arty  only  ap- 
pears where  he  claims  adversely  to  all  the  others,  and  stands 
in  danger  of  losing  his  property  in  the  contention  between  the 
otliers.  The  plaintiff  and  defendant  in  the  main  action  stand 
toward  each  other  in  the  same  relative  positions  as  the  parties 
to  an  attachment  suit,  whei'e  the  levy  is  by  seizure.  These 
have  been  sufficiently  explained  in  a  former  chapter,^  and  will 
not  occupy  a  great  deal  of  attention  here.  The  garnishee, 
however,  occupies  rather  an  anomalous  position.  Primarily, 
he  is  regarded  as  occupying  the  place  of  a  stakeholder  between 
the  parties  ;  disinterested,  and  entitled  to  exemption  from  the 
hardslilps  of  a  contest  to  which  he  has  been  made  an  involun- 

1  Ante,  §  326. 
■^  Ante,  Gh.Y, 
II.  Attach. -3. 


§    340  PARTIES    TO   THE   PROCEEDING.  34 

tary  party .'^  But  lie  nevertheless  stands  towards  the  principal 
parties  in  the  attitude  of  a  defendant,  in  a  suit  prosecuted  for 
one  in  the  name  of  the  other.^  And  not  only  is  this  a  suit 
which  may  be  reduced  to  a  judgment  against  the  garnishee,  to 
be  made  by  execution  out  of  his  general  property,  to  be  en- 
forced in  most  respects  as  any  other  judgment;  but  during  the 
progress  of  the  suit  he  may  occupy  a  position  antagonistic  to 
all  the  other  parties,  including  the  intervenor.'^  He  is  a  disin- 
terested party  only  when  he  admits  his  liability  to  the  princi- 
pal defendant ;  and  even  then  he  is  interested  in  knowing  that 
his  admission  is  true,  and  that  the  property  held  or  debt  con- 
fessed is  attachable.  He  is  also  intei-ested  in  knowing  that  the 
proceedings  for  bringing  him  into  Court  are  sufficiently  regu- 
lar to  give  the  Court  jurisdiction  of  his  person,  and  render  it 
his  duty  to  answer,  as  his  voluntary  appearance  will  not  be 
taken  as  a  legal  substitute  for  process.^  The  intervening  claim- 
ant, where  the  garnishee  admits  his  direct  liability  to  defend- 
ant, occupies  the  same  position  as  intervenors  generally,  his 
claim  being  adverse  to  that  of  either  of  the  others,  and  will  be 
noticed  hereafter.^ 

The  principal  part  of  the  present  chapter  will  necessarily  be 
taken  up  with  the  garnishee.  The  other  parties  need  only  be 
considered  incidentally.  So  far  as  the  process  of  garnishment 
affects  the  relations  between  the  principal  parties  and  the  gar- 
nishee, it  places  the  plaintiff  in  the  position  originally  occupied 
by  the  defendant,  as  a  creditor.  He  has  the  same  rights  and 
no  others,  as  against  the  third  party,  as  defendant  would  have 
in  a  direct  action  to  recover  the  amount  claimed,  or  the  prop- 
erty held. ^  Thus,  where  plaintiff  in  foreign  attachment  sought 
to  attach  bank  stock  standing  on  the  books  of  the  company  in 

3  Ante,  §  32G.  In  New  Hampshire  it  is  held,  that  the  fact  that  a  writ  of  for- 
■eign  attachment  was  made  out,  endorsed,  and  entered  by  the  garnishee  as  at- 
torney for  plaintiff,  no  wrong  being  intended  or  committed,  is  not  sufficient 
ground  for  discharging  the  garnishee  on  defendant's  motion;  but  such  prac- 
tice is  irreguhir,  and  not  to  be  encouraged.— Kelly  v.  McMinniman,  58  N.  H. 
288. 

^Ante,  §332. 

^  Ante,  §  337. 

fiAntc,  §  336;  Post,  Ch.  XXIX. 

"  Post,  §§  35i,  371,  402;  Ch.  XXXUI. 

8  Daniels  v.  Clark,  38  la.  55G;  Myer  v.  Liverpool  etc.  Ins.  Co.,  40  Md.  595. 


35  PARTIES   TO   THE   PROCEEDING.  §   341 

the  name  of  defendant,  though  it  had  been  previously  assigned, 
it  was  hehl  that  as  defendant  could  not  recover  the  stock,  or 
claim  any  beneficial  interest  in  the  capital  of  the  bank,  as  a 
stockholder,  after  such  assignment  was  known  to  the  corpora- 
tion, the  plaintiff  stood  on  no  better  footing  as  to  the  thing  at- 
tached, and  could  not  recover.^  The  matter  first  to  be  consid- 
ered in  reference  to  the  third  party  is,  Who  tnay  he  garnish- 
ees ?  This  will  resolve  Itself  largely  Into  an  Inquiry  as  to  who 
may  not  be  effectually  served  with  garnishment. 

§  341.  Third  Parties— Debtors  of  Defendant,  and  Parties 
in  possession  of  Defendant's  Property. — Generally  speaking, 
any  one  may  be  garnished  who  stands  towards  defendant  in 
the  action  in  the  relation  of  a  debtor,  or  who  Is  in  possession 
of  any  of  defendant's  attachable  property.^  The  I'equlrement 
that  they  shall  be  third  parties,  in  the  sense  that  their  posses- 
sion shall  be  independent  of  the  defendant  in  the  action,  though 
quite  general,  is  considerably  modified  by  decisions  that  hold 
jjartles  subject  to  the  process  whose  relations  to  the  defendant 
are  such  that  their  possession  Avould,  for  ordinary  purposes,  be 
regarded  as  Identical  with  that  of  defendant  himself.''^ 

Persons  holding  property  in  every  conceivable  capacity  have, 
at  one  time  or  another,  been  sought  to  be  subjected  to  garnish- 
ment in  a  suit  against  the  owner.  It  will  only  be  necessary  to 
notice  those  where  the  question  of  liability  has  been  raised  In 
relation  to  the  peculiar  status  of  the  party,  which  was  supposed 
to  create  an  exception,  or  some  peculiarity  In  his  relations  with 
the  parties,  or  the  subject  of  attachment,  that  rendered  it  Im- 
proper to  place  him  in  the  position  of  one  entirely  disinterested 
in  the  result  of  the  litigation. 

It  has  been  held  in  Tennessee  that  a  creditor,  who  is  Indebt- 
ed to  his  debtor,  may  attach  the  debt  in  his  own  hands. '^  But 
it  is  decided  in  Massachusetts,  as  It  seems  more  consistently 
with  the  general  purposes  of  the  statute,  that  a  plaintiff  can- 

9  United  States  v.  Vaughn,  3  Binney  (Pa.)  394;  5  Am.  Dec.  375. 

iClapp  V.  Hancock  Bank,  1  Allen,  394  ;  Corey  v.  Powers,  18  Vt.  587  ;  Loyless 
V.  Hodges,  44  Ga.  647  ;  Knox  v.  Protection  Ins.  Co.,  9  Conn.  430  ;  Malley  v.  Alt- 
man,  14  Wis.  22  ;  Piper  v.  Piper,  2  N.  H.  439. 

•^  Infra,  §§348,349,350. 

8  Boyd  V.  Bayless,  4  Humph.  386.   • 


§    342  PARTIES   TO   THE   PPwOCEEDING.  36 

not  summon  either  himself  or  one  of  his  co-debtors    as    gar- 
nishee.^ 

§  342.  Private  Corporations  ani  tlieir  Stockholders  as 
Gramisliees. — There  is  nothing  in  the  character  of  a  private 
corporation  that  should  render  it  seriously  questionable  wheth- 
er it  could  in  a  proper  case  be  summoned  as  garnishee.  Al- 
though a  "  body  politic  and  corporate,"  it  is  for  all  purposes 
consistent  with  the  objects  for  which  it  is  created,  a  person.^ 
It  may  sue  and  be  sued,  defend  itself,  as  individuals  may,  con- 
tract debts,  and  hold  property.  This  is  about  all  the  law  re- 
quires to  render  a  person  garnishable,  and  it  Is  only  necessary 
that  corporations  should  be  capable  of  being  served  with  pro- 
cess, to  render  them  subject  to  garnishment.^  They  are  for 
such  purposes  included  under  the  denomination  of  "Persons."^ 
A  domestic  corporation  was  held  liable  in  Xew  Hampshire  for 
funds  collected  in  another  State  without  any  stipulation  as 
to  place  of  payment.*  In  Virginia,  where  proceedings  in  at- 
tachment may  be  at  law  or  in  equity,  it  is  held  that  stock  in  a 
corporation  is  an  estate  liable  to  seizure  by  attachment ;  and 
for  the  purpose  of  such  proceedings,  the  stock  may  be  regard- 
ed as  in  possession  of  the  corporation,  and  may.  be  reached  by 
the  creditor  of  the  owner  by  process  of  garnishment.^  But  this 
mode  of  attaching  stock  in  corporations  is  not  general.  AYIth- 
out  questioning  the  right  of  parties  to  garnish  corporations,  it 
is  elsewhere  held  that  It  cannot  be  done  for  the  purpose  of  at- 
taching the  stock  of  the  debtor  in  such  corporation.^ 

In  a  former  chapter  we  have  seen  that  private  corporations 
may  be  defendants  in  suits  by  attachment,  and  that  their  prop- 

4  Belknap  v.  Gibbons,  13  Met.  471 ;  See  Hovy  v.  Hovy,  55  X.  H.  172. 

1  Mineral  Point  R.  Co.  v.  Keep,  22  111.  9 ;  Planters'  Bank  v.  Andrews,  8 
Port.  404  ;  McQueen  v.  Middleton  Man.  Co.,  16  Jobns,  5  ;  Commonwealth  v. 
Phoenix  Bank,  11  Met.  (Mass.)  129;  United  States  v.  Arnedy,  11  "VTLeat. 
392. 

2 Boyd  V.  Chesapeake  etc.  Canal  Co.,  17  Md.  195  ;  Taylor  v.  Burlington  etc. 
R.  Co.,  5  la.  114  ;  Yarnell  v.  Speer,  55  Ga.  132. 

3  Baltimore  etc.  R.  Co.  v.  Gallohue,  12  Gratt.  655  ;  Brauser  v.  Kew  England 
Fire  Ins.  Co.,  21  Wis.  506. 

4 Smith  V.  Boston  etc.  R.  Co.,  33 IST.  H.  337. 

5  Chesapeake  etc.  R.  Co.  v.  Paine,  29  Gratt.  502  ;  Montidonico  v.  Page,  10 
Heisk.  (Tenn.)  443. 

6  Planter's  etc.  Bank  v.  Leavens,  4  Ala.  753  ;  Ross  v.  Ross,  25  Ga.  297. 


37  PARTIES   TO   THE  PROCEEDING.  §   342 

erty  may  be  seized  under  a  writ  jjroperly  issuedJ  In  pursu- 
ance of  this  general  doctrine  It  is  held  that  for  this  purpose 
stockholders  may  be  garnished  as  debtors  to  the  corporation, 
on  account  of  unpaid  subscriptions  to  the  stock. ^  And  so  the 
creditor  of  a  Mutual  Ins.  Co.  was  held  entitled  to  sarnishraent 
against  one  of  the  nienibers  thereof  on  a  premium  note,  and 
although  the  company  was  dissolved,  and  a  receiver  appointed 
before  the  indebtedness  became  fixed  by  an  assessment,  the 
attachment  might  be  prosecuted  against  the  receiver  for  the 
amount  of  said  indebtedness  when  subsequently  ascertained.^ 

Where  it  is  sought  to  charge  a  foreign  corporation  as  gar- 
nishee, there  Is  an  Inherent  difficulty  in  the  way,  except  where 
it  lias  been  removed  by  ytatute.  They  are  to  all  legal  intents 
and  purposes  non-residents  of  the  State,  with  the  additional 
disadvantage  that  they  cannot  migrate,  or  become  thoroughly 
naturalized  in  any  other  jurisdiction  than  that  in  which  they 
were  organized. i*'  The  only  remedy  that  has  been  discovered 
for  this,  Is  by  the  legislation  of  the  States  requiring  foreign 
corporations  doing  bu.->iness  within  the  State  to  submit  to  the 
jurisdiction  of  its  Courts  by  empowering  some  one  to  re2Dresent 
the  corporate  body  for  all  purposes  of  process.  Where  a  cor- 
poration organized  in  one  State  is  sufficiently  represented  in 
another  State  for  the  genei'al  purpose  of  being  served  with  civ- 
il process,  it  is  sufficiently  within  such  State  to  be  summoned 
as  garnishee. ^1  When  a  coi-poratlon  has  been  chartered  in  two 
States,  It  may  for  the  purposes  of  garnishment,  as  well  as  oth- 
er process,  be  regarded  as  a  resident  of  either,  although  its 
chief  office  or  place  of  business  is  not  within  the  State  where  it 
is  served.-'^ 


"!  Ante,  Ch.  V.,§51. 

8 Pease  v.  Underwriters'  Union,  1  111.  App.  287  ;  FauU  v.  Alaska  etc.  Co.,  8 
Saw.  420  ;  14  Fed.  Rep.  657. 

9 Hays  V.  Lycoming  etc.  Co.,  99  Pa.  St.  621. 

"Bank  of  Augusta  v.  Earle,  13  Pet.  519;  Camp  v.  Byrne,  41  Mo.  523  ;  Evans 
V.  Monat,  4  Jones  Eq.  213 ;  New  Orleans,  etc.  E.  Co.  v.  Wallace,  50  Miss. 
244. 
11  Maliany  v.  Kephart,  15  W.  Va.  609. 

i-Mabany  v.  Kepbart,  15  W.  Va.  609.  [Where  a  corporation  is  garnisLed  by 
service  on  an  officer  away  from  his  office,  and  another  officer  pays  the  debt 
without  actual  notice  of  the  garnishment,  the  garnishee  is  held  to  be  exoner- 
ated—Lyon  V.  Russell,  72  Me.  619.] 


§    343  PARTIES   TO   THE   PEOCEEDING.  38 

§  343.  Foreign  Corporations  as  Garnishees. — Corporations 
foreign  to  the  State  are  held  subject  to  garnishment  in  the 
State  where  they  own  property,  or  the  cause  of  action  against 
them  arose. ^  But  unless  they  are  amenable  to  process  in  such 
State,  it  is  difficult  to  see  how  they  are  to  be  served.  As  they 
are  not  migratory,  their  place  of  residence  does  not  follow  that 
of  their  members.^  They  cannot  be  even  temporarily  ab- 
sent from  the  States  where  they  were  organized,  and  can  only 
do  business  In  a  foreign  State  as  a  matter  of  comity.^  The 
process  of  garnishment  Is  required  to  be  personally  served,  and 
personal  service,  upon  which  a  personal  judgment  may  be  ren- 
dered, can  only  be  had  within  the  jurisdiction  from  which  the 
summons  Issues.^  The  service  upon  the  garnishee  cannot  be 
made,  as  an  action  in  rem,  by  seizure  of  the  garnishee's  prop- 
erty ;  and  for  these  reasons,  as  well  as  the  statutes  which  In 
some  of  the  States  render  non-residents  exemj)t  from  the  pro- 
cess of  garnishment,  this  class  of  corporations  Is  held  not  sub- 
ject to  garnishment.^  All  exceptional  statutory  methods  of  ob- 
taining jurisdiction  over  persons,  natural  or  artificial,  not 
found  within  the  State  or  district  in  which  the  ordinary  pro- 
cess of  the  Court  may  be  personally  served,  must  be  confined 
to  the  cases,  and  exercised  In  the  precise  manner,  Indicated  by 
the  statute.^ 

In  Pennsylvania,  the  difficulty  was  overcome  by  statute,  un- 
der Avhich  It  was  held  not  only  that  the  foreign  corporation 
might  be  garnished  In  that  State,  but  that  a  debt  reduced  to 
judgment  in  the  Courts  of  another  State  could  be  effectually 
attached  by  that  means. '^  By  statute  of  1870,  corporations 
foreign  to  the  jurisdiction  of  Massachusetts,  that  theretofore 
had  been  In  that  State  exempt  from  process  of  garnishment, 

1  Brauser  v.  New  England  Fire  Ins.  Co. ,  21  Wis.  506. 

2  St.  Louis  i;.  Wiggins  Perry  Co.,  40 Mo.  58;  Danforth  u.  Penny,  3  Met.  (Mass.) 
5G4. 

3  Baltimore  etc.  R.  Co.  v.  Glenn,  28  Md.  287;  Newburg  Petroleum  Co.  v. 
Weare,  27  OhioSt.  343;  Ormsby  f.  Vermont  Copper  Co.,  5(JX.  Y.  623;  New  Or- 
leans etc.  E.  Co.  V.  Wallace,  50  Miss.  244. 

4  Pennoyer  v.  Neff,  95  U.  S.  714. 

5  Gold  )'.  Housatonic  R.  Co.,  1  Gray,  424;  Taft  v.  Mills,  5  R.  I.  393. 

6  Hebel  v.  Amazon  Ins.  Co.,  33 Mich.  400  ;  McAllisters.  Penn,  Tns.  Co., 28  Mo. 
214. 

"  Jones  V.  N.  Y.  &  E.  R.  Co.,  1  Grant's  Cas.  454. 


39  PARTIES   TO   THE   PEOCEEDING.  §    344 

were  rendered  subject  thereto.^  This  Is  a  matter  which  may 
be  provided  for  by  statute  requiring  foreign  corporations,  as  a 
condition  to  their  being  permitted  t(j  carry  on  their  bu.<iness 
within  tlie  State,  to  designate  some  one  upon  whom  process 
may  be  served.  The  term  "  process  "  will  generally  be  held 
to  include  that  of  garnishment.  It  is  generally  under  such 
statutes,  or  what  is  equivalent  thereto,  that  such  corporations 
doing  business  in  the  State  where  the  action  is  pending  are 
subject  to  garnishment.^  In  New  York,  where  a  debt  was 
due  by  a  foreign  corporation  to  a  non-resident,  and  the  corpor- 
ation had  no  agency  in  the  State,  it  was  held  that  the  debt 
could  not  be  attached,  in  an  action  against  such  non-resident.^'^ 

§  344.  Non-Resident  Garnishees. — Where  it  is  sought  to 
subject  a  non-resident  individual  to  garnishment,  the  matter  is 
not  beset  with  the  same  difficulty  in  the  way  of  obtaining  ser- 
vice upon  the  garnishee  as  In  case  of  a  foreign  corporation. 
The  non-resident  debtor  may  be  personally  present  within  the 
jurisdiction  of  the  Court  Issuing  the  summons,  and  within  reach 
of  its  process  for  all  ordinary  purposes.  Notwithstanding  this, 
however,  the  cases  are  quite  as  numerous,  in  which  it  is  held 
that  Individual  non-residents  cannot  be  effectually  served  with 
process  of  garnishment,  as  that  foreign  corporations  cannot  be 
so  served.  But  the  general  rule^  Is,  that,  where  a  non-resident 
is  within  the  State,  and  has  attachable  effects  or  credits  In  his 
possession,  he  may  be  as  effectually  garnished  as  though  he 
were  a  resident  within  the  jurisdiction  of  the  Court. ^  The 
conditions  upon  which  this  liability  depends,  under  this  rule, 
are,  that  the  property  In  possession  of  the  garnishee  shall  be  in 
his  actual  possession,  or  under  his  control,  within  the  State,  or 

8  Larkin  v.  Wilson,  lOS  Mass.  120. 

9  Selma  etc.  R.  Co.  v.  Tyson,  48  Ga.  351;  Darlington  v.  Rogers,  13  Phila.  102; 
Hannibal  etc.  E.  Co.  v.  Crane,  102  111.  249;  National  Bank  of  Commerce  v. 
Huntington,  129  Mass.  444;  Supra,  §342. 

w  Willet  r.  Equitable  Insurance  Co.,  10  Abb.  Pr.  193. 

1  What  is  liere  meant  by  "  general "  is  merely  that  it  is  the  rule  that  prevails 
under  the  statutes  of  most  of  the  States. 

2  Jones  r.  Winchester,  6  N.  H.  497;  Lovejoy  v.  Albree,  33  Me.  414;  54  Am. 
Dec.  630;  Lawrence  v.  Smith,  45  N.  H.  533.  In  Ehoiie  Island  a  non-resident 
temporarily  within  the  State  cannot  be  served. —  Cronin  v.  Foster,  13  R.  I. 
196. 


§    344  PARTIES    TO    THE   PEOCEEDIXG.  40 

tlie  debt  owing  to  the  defendant  in  attachment  payable  within 
the  State.  It  was  accordingly  held,  that  if  an  inhabitant  of 
another  State  should  be  duly  served  with  process  of  garnish- 
ment while  within  the  jurisdiction  of  the  Court  issuing  the 
process,  lie  was  bound  to  appear  and  answer,  or  judgment 
would  be  rendered  against  him.  But  if  it  a^ipeared  from  his 
answer,  or  on  examination,  that  he  had  no  property  of  defend- 
ant in  his  hands,  within  the  State  where  the  suit  was  pending, 
and  was  not  liable  to  the  principal  debtor  on  any  contract  to 
be  paid  or  performed  therein,  he  was  not  chargeable.^  Where 
a  non-resident  was  temporarily  within  the  State  of  Massachu- 
setts, and  while  there  accepted  an  assignment  of  property  of 
an  insolv^ent  debtor,  for  the  payment  of  ci'cditors,  it  was  held 
that  this  fact  did  not  take  the  case  out  of  the  rule  which  was 
recognized  as  controlling;  there,  that  a  non-resident  could  not 
be  held  to  answer  such  process.^  So  it  was  held  that  a  person 
comin""  tem])orarily  within  the  State  could  not  be  summoned 
as  garnishee  under  the  statutes  regulating  this  method  of  at- 
taching the  effects  of  absconding,  concealed,  or  absent  debt- 
ors.^ In  Pennsylvania  the  rule  seems  to  be  somewhat  diffe'r- 
ent,  and  less  observant  of  the  sacredness  of  State  lines,  even 
where  the  exercise  of  jurisdiction  is  by  the  Courts  of  another 
State  against  its  own  citizens.  Thus,  where  plaintiff,  defend- 
ant, and  garnishee  were  citizens  of  Pennsylvania,  but  the  suit 
was  brought  in  Maryland,  where  the  garnishee  was  served  on 
account  of  wages  due  defendant,  which,  under  the  laws  of  the 
State  of  their  common  residence,  were  exempt  from  attachment, 
it  was  held  that  the  judgment  rendered  against  the  garnishee 
in  Maryland  and  its  payment  was  a  good  defense  to  a  subse- 
quent action  against  the  garnishee,  although  the  wages  sued 
for  were  earned  in  the  State  were  they  were  exempt.  Tlie  ex- 
emption merely  affected  the  remedy,  was  no  part  of  the  con- 
tract, and  hence  was  not  carried  into  the  Maryland  forum, 
wliere  no  such  statutory  exemption  was  in  force.^ 

s  Lawrence  v.  Smith,  45  N.  H.  533;  Sawyer  v.  Thompson,  24  X.  II.  510. 

4  Hart  V.  Anthony,  15  Pick.  445;  Green  v.  Farmers'  etc.  Bank,  25  Conn. 
452;  Ray  v.  Underwood,  3  Pick.  302;  Kye  v.  Liscombe,  21  Pick.  263;  Tingley  i-. 
Bateman.  10  Mass.  343. 

5  Baxter  v.  Vincent,  0  Vt.  G14.     See,  also,  Tamm  v.  Williams,  2  Chitty,  438. 
G  Morgan  v.  Seville,  74  Pa.  St.  52. 


41  PARTIES   TO   THE   PROCEEDING.  §    344 

In  a  suit  by  attachment  in  chancery  in  the  District  of  Colum- 
bia, the  garnishee  residing  there  was  hehl  not  liable  to  ijlaintiff 
for  property  of  defendant  in  his  (garnishee's)  custody  in  the 
State  of  Virginia^  By  the  laws  of  Virginia,  where  the  absent 
defendant  is  sued,  and  service  of  garnishment  had  on  a  party 
within  the  State,  who  has  funds  of  the  aljsent  debtor  in  his 
hands,  the  Court  may  either  suffer  tlio  funds  to  remain  in  the 
possession  of  the  garnishee,  or  to  be  paid  over  to  phiintlif,  se- 
curity being  given  in  either  case  to  refund  tlie  money  on  final 
decree.  But  in  either  event,  the  money  will  be  considered  as 
in  the  custody  of  the  Court,  pending  the  suit,  and  Jiot  liable  to 
be  sued  for  by  the  absent  defendant.^  This  is  quite  different 
from  the  rulinss  noticed  from  several  of  the  New  England 
States.  In  New  Hampshire  the  rule  of  exemption  from  pro- 
cess of  garnishment  rests  upon  the  fact  not  only  that  the  party 
served  is  a  non-resident  of  the  State,  but  that  the  property  or 
debt  which  it  is  sought  to  reach  is  beyond  the  jurisdiction  of 
the  Court,  Where  all  the  2)arties  to  the  proceeding  were  non- 
residents, but  the  garnishee  was  present  in  the  State  temporar- 
ily, having  in  his  possession  notes  and  money  belonging  to  the 
principal  defendant,  it  was  held  that  he  might  be  charged  as 
garnishee. when  jurisdiction  was  obtained  of  the  pei'son  of  the 
defendant  by  his  subsequent  appearance.^ 

In  Louisiana  it  is  held  that  a  party  domiciled  without  the 
jurisdiction  of  the  Court  may  be  summoned  as  garnishee  when 
such  service  is  practicable,  and  will  be  required  to  answer, 
when  the  garnishment  is  under  a  writ  of  attachment,  but  not 
when  it  is  issued  under  a  Ji.  fa?^ 

In  the  case  arising  in  the  District  of  Columbia,  the  absence 
of  the  property,  though  in  the  possession  of  a  resident,  was 
held  sufficient  to  exempt  the  latter.^^  This  seems  to  ignore  the 
rule  that  the  situs  of  personal  property  follows  the  residence 
of  the  owner,  which  would  probably  apply  to  chattels  in  which 
the  party  in  possession  had  only  a  special  property.^"    In  Mas- 

T  Miller  v.  Hooe,  2  Cranch  C.  C.  622.  See,  also,  Wheat  v.  Piatt  Citj^  etc.  E. 
Co.,  4  Kan.  370. 

8  Mattingly  v.  Boyd,  20  How.  128. 
a  Young  v.  Russ,  31  N.  H.  201. 
w  Marqueze  v.  LeBlanc,  29  La.  An.  194. 

11  Miller  v.  Hooe,  2  Cranch  C.  C.  C22. 

12  Peck  V.  Barnum,  24  Vt.  75. 


§    345  PARTIES   TO   THE   PROCEEDING.  42 

sacliusetts,  where  it  appeared  that  defendant  was  a  non-resi- 
dent, and  none  of  his  property  had  been  attached  in  the  State, 
except  by  garnishment  of  a  non-resident,  it  was  held  that  the 
proceeding  should  be  dismissed  on  motion. ^^  Here  the  doctrine 
is  followed,  that  debts — choses  in  action — are  local,  and  remain 
at  the  residence  of  the  debtor,  as  would  chattels  intrusted  to 
his  care,^*  while  in  Pennsylvania,  New  Hampshire,  and  Vir- 
ginia, personal  property  is  treated  as  having  an  actual  situs 
within  the  jurisdiction  of  the  Court,  when  brought  there  tem- 
porarily by  the  garnishee. -^^ 

§  345.  Municipal  Corporations  as  Garnisliees. — The  founda- 
tion of  the  doctrine  that  municipal  corporations  cannot  be 
called  upon  to  answer  as  garnishees,  is  purely  a  question  of 
public  policy.  They  are  regarded  as  integral  branches  of  the 
government,  exercising  only  public  functions,  and  intended 
to  guard  public  interests.  To  j^ermit  them  to  be  subjected  to 
actions,  and  possible  judgments  and  expense,  in  relation  to  mat- 
ters in  which  they  have  no  interest,  it  is  claimed  would  be  an 
intolerable  burden,  in  view  of  the  large  number  of  persons 
who  necessarily  stand  toward  them  as  creditors.  To  turn 
them  into  mere  instruments  for  the  collection  of  private  debts, 
it  is  thought,  would  detract  from  their  dignity,  and  be  subver- 
sive of  the  public  interest.  To  place  the  debts  owing  by  large 
cities,  towns,  or  other  municipal  governments,  within  the 
reach  of  this  facile  process,  it  is  feared  might  endanger  the 
working  capacity  of  the  government,  by  driving  away  the  em- 
ployees upon  whom  its  executive  duties  devolve,  thus  endan- 
gering the  peace  and  good  order  of  the  community  ;  and  much 
more  to  tlie  same  general  purport,  which  is  not,  however,  uni- 
versally convincing.  Yet  in  a  majority  of  the  States,  it  has 
been  held  that  municipal  corporations  cannot  be  garnished.^ 
In  Missouri,  however,  where  the  doctrine  of  municipal  exemp- 
li Nye  V.  Liscombe,  21  Pick.  263. 
"  Tingley  v.  Bateman,  10  Mass.  343. 
15  Cases  cited  suj}ra 

1  Merwia  v.  Chicago,  45  111.  133;  Pendleton  v.  Perkins,  49  Mo.  565;  Jenks  i'. 
Osceola  Township,  45  la.  554;  Brown  v.  Heath,  45  N.  H.  168;  Greer  v.  Rowley, 
1  Pittsburgh,  1;  Commissioners  of  Las  Animas  Co.  v.  Bond,  3  Colo.  411;  Con^ 
overt;.  Ruckman,  32  N.  J.  Eq.  685;  Dubois  y.  Dubois,  6  Cow.  494;  Waldman 
V.  O'Donnell,  57  How.  Pr.  215;  Walker  v.  Cook,  129  Mass.  577. 


43  PARTIES   TO   THE   PROCEEDING.  §   346 

tion  from  this  process  is  maintained  quite  as  stoutly  as  else- 
where, it  is  decided  that  substantially  the  same  result  can  be 
reached  by  a  bill  in  equity.^  It  was  also  held  in  substance  to 
the  same  effect  in  Kentucky.^  Formerly,  in  Iowa,  municipal 
corporations  were  subject  to  garnishment,''  but  latterly  it  was 
provided  that  debts  due  from  a  political  or  municipal  corpora- 
tion could  not  be  attached  by  garnishment  of  the  debtor.^  And 
in  Jenks  v.  Osceola  Toionship^^  the  exemption  was  held  to  be 
universal  in  its  application.  While  on  grounds  of  public 
policy  the  doctrine  of  exemption  is  fully  recognized  in  Colora- 
do, it  is  nevertheless  held  that  when  the  garnishee  appears  and 
admits  the  liability,  without  claiming  the  benefit  of  the 
immunity,  it  is  thereby  waived,  and  judgment  may  be  en- 
tered against  the  municipality^  That  this  question  may  be 
controlled  by  legislation,  either  giving  or  withholding  the 
right  to  garnish  towns,  cities,  and  other  suable  public  coi-pora- 
tions,  there  can  be  no  doubt ;  but  when  the  process  of  garnish- 
ment is  by  statute  expressly  made  applicable  to  debts  due  f i*om, 
or  property  held  by,  "  any  person  or  corporation,"  or  "  any 
corporation,"  or  where  the  organization  of  the  municipality  is 
on  the  basis  of  liability  and  subjection  to  process,  In  the  same 
manner  as  private  persons  or  corporations,  it  Is  dlQScult  to  dis- 
cover a  substantial  reason  for  exempting  them  from  this  pecu- 
liar pi'ocess,  where  the  means  of  protecting  them  from  injury 
are  ample. ^ 

§  346.  States — Exemption  from  Suit. — The  only  manner  in 
which  a  State  can  be  rendered  amenable  to  the  process  of  gar- 
nishment, Is  by  its  own  consent.  IStates  stand  upon  a  dliferent 
footing  In  respect  to  exemptions  from  process,  than  municipal 

2  Pendleton  v.  Perkins,  49  Mo.  565. 
8  Speed  r.  Erown,  10  B.  Mon.  108. 

4  TTales  v.  Muscatine,  4  la.  302;  Claflin  v.  Iowa  City,  12  la.  284.  [But  in 
■^»\'ales^•.  Muscatine  it  is  so  held,  because  tLe  objection  was  waived  by  ibe 
garnishee;  and  in  the  other  case  cited  there  was  another  objection  that  de- 
feated the  proceeding,  which  will  be  noticed  in  a  subsequent  chapter. — Post, 
Ch.  XXVI. 

5  Caldwell  v.  Stewart,  30  la.  379;  Mayor  etc.  of  Baltimore  v.  Eoot,  8  Md.  95; 
Triebel  v.  Colburn,  64  111.  376;  State  v.  i:berly,  12  Neb.  616. 

6  45  la.  554. 

"^  Commissioners  Las  Animas  Co.  v.  Bond,  3  Colo.  411. 
8  See  Post,  §  419. 


§   347  PARTIES   TO   THE   PROCEEDING.  44: 

corporations  within  the  State.  The  latter,  notwithstanding 
their  public  character,  are  liable  to  be  sued,  while  the  former 
are  not.  Hence,  funds  in  the  hands  of  the  State  treasurer, 
due  from  the  State  to  a  defendant,  against  whom  plaintiff  lias 
a  cause  of  action  with  sufficient  grounds  of  attachment,  cannot 
be  attached  by  garnishment  served  upon  the  State  officer.^  For 
the  same  reasons,  if  no  other,  the  salaiy  of  a  State  officer  is 
not  subject  to  attachment.^  But  exemption  from  suits  in  par- 
ticular Courts  has  not  always  been  held  sufficient  to  render 
parties  exempt  from  this  process.  Foreign  consuls  can  be  sued 
only  in  the  United  States  Courts;  but  they  have  nevertheless 
been  held  subject  to  jirocess  of  garnishment,  notwithstanding 
the  consular  privilege,  upon  the  ground  that  such  a  proceeding 
was  not  a  suit.^  Bonds  deposited  with  a  State  officer  by  an 
insurance  company,  as  security  for  risks,  are  not  attachable 
by  garnishment  served  on  the  official  custodian.'' 

§  347  Officer  of  Court  as  Garnishee. — As  to  whether  money 
in  the  hands  of  an  officer  of  Court,  and  which  belongs  to  the 
defendant  in  attachment,  and  which  has  been  realized  on  an 
execution  in  favor  of  such  defendant,  may  be  reached  by 
process  of  garnishment  served  on  the  officer,  there  are  two  very 
decided  opinions.  Some  of  the  authorities  hold  that  money 
held  by  the  officer  is  in  the  custody  of  the  Court,  and  as  such 
not  subject  to  garnishment  at  the  suit  of  a  creditor  of  the  party 
to  whom  it  is  due.^  Most  of  these  cases  turn  upon  the  ques- 
tion whether  money  in  the  hands  of  the  executive  officer,  col- 
lected by  him  on  execution,  may  be  attached  in  his  hands,  in 

1  Lodor  V.  Baker,  39  N.  J.  L.  49. 

2  Bank  of  Tenn.  v.  Dibrell,  3  Sneed,  (Tenn.)  379. 

3  Kidderlin  v.  Meyer,  2  Miles,  2i2;  Ante,  §  232. 

4  Pennebaker  v.  Tomliuson,  1  Teun.  Ch.  111. 

1  Alston  V.  Clay,  2  Ilay  wood  (X.  C),  171;  Robinson  v.  Howard,  7  Cusli.  257; 
Blair  v.  County,  2  Speer  (S.  C),  34;  42  Am.  Dec.  3G0;  Zurclier  r.  Magee,  2  Ala. 
253;  Dawson  v.  Holcomb,  1  OLiio,  275;  13  Am.  Dec.  G18;  Morris  v.  Penuiman, 
14  Gray,  220;  Dubois  v.  Dubois,  G  Cowan,  494;  Burrell  v.  Letson,  1  Strobhart 
(S.  C),  239;  Conant  v.  Bicknell,  1  D.  Chip.  (Yt.)  50;  First  r.  Miller,  4  Bibb 
(Ky.),311;  Prentiss  r.  Bliss,  4  Vt.  573;  24  Am.  Dec.  (531;  Reddick  r.  Smith,  4  111. 
451;  Turner  v.  Teudall,  1  Cranch,  117;  Thompson  v.  Brown,  17  Pick.  4G2.  [It 
is  held  in  Massachusetts,  that  the  Sheriff  cannot  be  garnished  for  money  of  a 
judgment  creditor,  until  the  latter  has  made  a  demand  on  the  officer.]  Pollard 
V.  Ross,  5  Mass.  319;  Sharp  v.  Clark,  2  Mass.  91;  Thayer  v.  Tyler,  5  Allen,  94; 
"Wilder  V.  Bailey,  3  Mass.  289;  Pawley  v.  Gains,  1  Overton  (Tenn.),  208. 


45  PARTIES  TO  THE  PROCEEDING.  §   347 

an  action  ajjainst  the  execution  creditor  for  whom  it  was  col- 
lectcd  ;  and  it  is  decided  in  the  negative. ^  But  in  New  Jersey 
it  is  held  that  while  the  officer  may  not  apply  the  proceeds  of 
an  execution  in  satisfaction  of  another  execution  against  the 
first  execution  creditor,  yet  suoJi  money  may  be  seized,  as  a 
right  or  credit  in  his  hands. ^  It  is  filso  held  that  money  in  the 
hands  of  the  Clerk  of  the  Court  cannot  be  so  levied  on.*  But 
if  either  of  these  propositions  is  accepted  as  true,  it  must  be 
with  some  qualification,  at  least  as  broadly  stated,  for  they 
are  abundantly  contradicted.  Where  money  has  been  depos- 
ited in  the  hands  of  a  clerk  in  lieu  of  an  ai)peal  bond,  it  is  held 
that  it  may  be  attached  by  garnishment  at  the  suit  of  a  cred- 
itor of  the  depositor.^  And  where,  after  satisfying  an  execu- 
tion from  the  proceeds  of  a  sale,  the  oflScer  has  a  surplus  in  his 
hands,  it  may  be  so  attached  by  a  creditor  of  the  party  to 
whom  it  is  due;  as  it  cannot  be  regarded  as  money  in  the  cus- 
tody of  the  law,  but  as  the  money  of  the  party  to  whom  it  be- 
longs.^ And  so  it  is  held,  that  an  accepted  draft  filed  in  a 
case  with  the  Clerk,  may  be  attached  by  citing  the  Clerk  in 
whose  custody  it  is,  as  garnishee,  and  proving  such  custody  by 
his  answers  to  interrogatories.'^  kSo,  also,  it  is  held  that  the 
Sheriff  may  be  charged  as  garnishee,  on  account  of  money  col- 
lected for  the  defendant  on  execution,  although  the  money  has 
never  been  demanded  of  him.^  Where  the  money  in  the  hands 
of  the  officer  is  subject  to  the  order  of  either  of  the  parties  to 
the  action,  and  such  party  has  a  right  of  action  therefor,  or 
may  perfect  such  right  by  simply  making  a  demand,  no  reason 
is  apparent  for  regarding  the  money  so  held  as  in  the  custody 
of  the  law.  And  any  support  that  a  denial  of  the  right  of  a 
creditor  of  the  party  so  entitled  to  attach  such  money  re- 
ceives, must  come  from   the  statutes,  or  stare  decisis.     The 

2  But  see  "Wheeler  v.  Smith,  11  Barb,  S45.    [Bat  see,  as  to  Constable,  Storm 
V.  Adams,  5G  Wis.  137.] 

3  Crane  v.  Freese,  16  N".  J.  L.  305. 

4  Russ  V.  Clark,  1  Dallas,  354;  Pace  v.  Smith,  57  Tex.  555. 

5  Dunlap  V.  Patterson  Fire  Ins.  Co.,  74  N.  Y.  145;  30  Am.  R.  283;  12  Ilnn.  C2T. 
8  Tucker  v.  Atkinson,  1  Humph.  (Tenn.)  310;  34  Am.  Dec.  650;  Weaver  v, 

Davis,  47  111.  235. 

7  Ealer  v.  McAllister,  14  La.  An.  821. 

sWoodbridge  v.  Morse,  5  N.  H.  590;  New  Haven  v.  Fowler,  28  Conn.  103; 
Burleson  v.  Milan,  56  Miss.  399. 


§    348  PARTIES    TO   THE   PROCEEDING.  46 

Statute  may  be  so  framed  that,  without  expressly  excluding  of- 
ficers from  the  classes  subject  to  garnishment,  a  strict  interpre- 
tation will  not  include  them.  But  in  the  absence  of  any  ex- 
clusion, either  express  or  implied,  or  of  circumstances  that 
should  render  the  funds  in  their  hands  exempt  from  attachment, 
on  principle,  they  should  be  required  to  answer  the  process  of 
garnishment  precisely  as  any  other  custodian  of  the  debtor's 
effects. 

§  348.  Officer  of  Private  Corporation  as  Garnishee  of  Cor- 
poration.— In  suits  by  attachment  against  corporations,  or  in 
executing  judgment  against  them,  it  has  been  questioned 
whether  one  of  the  defendant's  officers,  being  possessed  of  ef- 
fects or  credits  that  belong  to  the  defendant,  may  be  summoned 
as  a  garnishee.  The  objection  was  raised  to  this  method  of 
execution,  that  the  garnishment  Avas  in  effect  a  proceeding 
against  the  corporation  ;  and  that  the  officer  could  not  be 
questioned  as  to  property  of  the  corporation,  until  the  execu- 
tion had  been  returned.  But  this  objection  was  held  not  valid, 
for  the  reason  that  the  president,  having  property  of  the  cor- 
poration in  his  hands,  was  to  be  regarded  as  any  other  individ- 
ual.^ Where  the  officer  occupies  the  position  of  an  ordinary 
debtor  of  the  corporation,  or  a  depositary  of  funds,  of  .which 
he  has  the  same  kind  of  control  that  any  other  person  so  en- 
trusted would  have,  there  is  no  reason  why  he  should  not  be 
subject  to  garnishment.  But  where  his  possession  or  control 
is  strictly  in  his  official  capacity,  he  is  so  closely  identified  with 
the  corporation  he  represents,  that  the  effects  so  held  cannot 
be  said  to  be  in  the  hands  of  a  third  person.  The  ruling  in 
Everdell  vs.  Sheboygan  etc.  R.  Co.,^  seems  to  go  the  length  of 
holding  that  a  cashier  or  oth^r  officer  is  subject  to  garnishment 
for  money  or  property  of  the  comjjany  in  his  possession  as  such 
officer.  This  doctrine  cannot  be  generally  approved.  In  Maine 
it  is  held  that  the  cashier  of  a  bank,  in  which  were  deposited 
funds  of  a  corporation  of  which  he  was  treasurer,  could  not  be 
summoned   as  garnishee  of  the  corporation  whose  funds  he 

1  Ballston  Spa  Bank  v.  Marine  Bank,  18  "Wis.  490 ;  Everdell  v.  Sheboygan 
etc.  E.  Co.,  41  Wis.  395  ;  AwLe,  §  330. 
241  Wis.  395. 


47  PARTIES   TO   THE   PROCEEDING.  §    349 

liekl.3  If  the  doctrine  of  the  Wisconsin  case  had  been  followed, 
it  would  seem  that  if  ho  coidd  not  be  summoned  as  cashier,  he 
could  have  been  required  to  answer  as  treasurer,  but  it  was 
held  otherwise.* 

§  349.  Agent  or  Servant  of  Debtor  as  Garnishee. — Inti- 
mately connected  with  the  subject  of  the  next  preceding  sec- 
tion, is  that  which  involves  the  question,  whether  agents  or 
servants  of  the  debtor  are  the  proper  parties  to  a  proceeding  by 
garnishment,  in  consequence  of  money  or  property  held  by  them 
for  the  principal  or  master.  As  to  debts  owing  by  them,  there 
can  be  no  reasonable  doubt ;  as  the  relation  of  debtor  and  credit- 
or can  be  no  part  of  the  business  in  which  the  agent  or  servant 
is  employed,  though  indebtedness  may  arise  out  of  such  business. 
If  it  can  be  shown  that  any  person  is  indebted  to  the  defendant 
in  attachment  or  execution,  it  is  immaterial  what  additional 
relations  they  sustain  to  each  other.  But  it  is  necessarily  dif- 
ferent in  respect  to  the  property  which  the  agent  or  servant 
has  in  his  possession  or  under  his  immediate  control,  as  the 
property  of  the  principal  or  master,  and  which  he  holds  by 
virtue  of  his  employment.  There  are  also  distinctions  to  be 
made  as  to  agents.  There  are  those  who  occupy  this  position 
under  a  superior,  in  name  only — being  in  effect  mere  servants 
or  employees ;  and  others  whose  agency  is  more  independent 
of  immediate  control,  as  factors,  and  the  like,  where  identity 
of  possession  does  not  follow  fi'om  the  relations  existing  be- 
tween them,  as  in  case  of  the  subordinate  agents  or  servants 
first  mentioned.  When  the  property  of  defendant  is  in  the 
hands  of  one  whose  possession  is  the  possession  of  the  owner, 
it  should  be  attached  or  taken  in  execution  by  distinct  seizure, 
when  it  could  be  so  taken  from  the  owner,  if  under  his  imme- 
diate personal  control.^  Thus,  it  is  held  that  a  ticket  agent  of 
a  raih'oad  company  cannot  be  garnished,  to  attach  the  money 
in  his  hands  collected  from  the  sale  of  tickets,  for  the  reason 
that  such  agents  cannot  be  regarded  as  third  persons.^ 

sSprague  v.  Steam  Nav.  Co.,  52  Me.  292.  See  Mueth  v.  Schardin,  4  Mo.  App. 
403. 

4  See  First  National  Bank  v.  Davenport  etc.  R.  Co.,  45  la.  120. 

iHall  ?!.  Filter  Mf 'g  Co.,  10  Phila.  370  ;  Flanagan  v.  Wood,  33  Yt.  332. 

2  Fowler  v.  Pittsburg  etc.  E.  Co.,  35  Pa.  St.  22  ;  Pettingill  v.  Androscoggin 
R.  Co.,  51  Me.  370, 


§    349  PAKTIES   TO   THE    PROCEEDING.  48 

But  a  contrary  doctrine  is  held  in  the  State  of  Ahibania,  as 
there  it  was  held  proper  to  garnish  the  keeper  of  a  toll-gate, 
for  funds  belonging  to  an  incorporated  plank-road  comjjanj,  of 
which  he  was  the  servant.^  So  it  is  laid  down  in  Iowa,  that  in 
order  to  be  subject  to  process  of  garnishment,  it  is  i\pt  essential 
that  the  party  should  have  independent  custody  and  control  of 
the  debtor's  property.  Although  he  might  act  under  orders 
of  another,  who  had  the  dis2:)Osition  of  the  property,  yet  he 
mie:ht  still  be  liable  as  garnishee  in  an  action  against  his  em- 
ployer.  And  this  is  applied  to  a  case  where  the  cashier  of  a 
railroad  company  was  garnished,  in  an  action  against  the  cor- 
poration.^ 

One  can  readily  see  the  difference  in  relations  from  which 
the  distinction  arises,  between  an  ordinary  depositary  of  chat- 
tels and  the  mere  servant  who  holds  the  property  of  his  mas- 
ter. The  servant  and  the  depositary  may  each,  for  certain 
purposes,  be  regarded  as  the  agent  of  the  owner.  To  serve 
the  one  would  be  regarded  as  equivalent  to  serving  the  pro- 
cess personally  upon  the  debtor  ;  while  the  other  would  have 
such  rights  in  connection  with  the  property  held,  that  it 
could  be  attached  in  no  other  manner  without  disturbin<i 
them. 

The  case  of  an  attorney  who  has  collected  money  for  the 
defendant,  and  has  it  in  possession  subject  to  the  latter's  right 
of  action  therefor  on  demand  and  failure  to  pay,  may  be  held 
as  garnishee  if  properly  served.^  But  this  is  for  the  reason 
that  he  occupies  the  position  of  debtor  to  the  defendant  in  at- 
tachment. 

Property  in  possession  of  defendant,  as  money  in  the  safe 
of  a  Safe  Deposit  Co.,  of  which  defendant  has  the  key,  cannot 
be  attached  by  garnishment.^ 

3  Central  Plank  Eoad  Co.  v.  Sammons,  27  Ala.  380.  See  McDonald  v.  Gillett, 
69  Me.  271. 

4 First  National  Bank  v.  Davenport  etc.  R.  Co.,  45  la.  120.  See  also,  Cen- 
ter V.  McQuestion,  18  Kan.  476  ;  Littleton  Bank  v.  R.  &  O.  R.  R.,  58  N.  H. 
104. 

5  Mann  v.  Buford,  3  Ala.  312  ;  37  Am.  Dec.  691  ;  Riley  r.  Hirst,  2  Pa.  St.  346; 
Tarbell's  Case,  1  Saunders  (Eng.)  G7  ;  Ridge  v.  Hardcastle,  8  T.  R.  417  ;  Sta- 
ples V.  Staples,  4  Me.  532  ;  Taylor  v.  Sberman,  12  Mass.  441 ;  Tucker  v.  Butts, 
6  Ga.  580. 

6  Gregg  V.  Hilson,  8  Phila.  91. 


49  PARTIES   TO   THE   PROCEEDING.  §    350 

§  350.  The  Wife  of  Defendant  as  Garnishee.— We  have  al- 
ready noticed  the  departures  from  the  doctrine  that  the  gar- 
nishee must  be  a  third  person^  occupying  a  position  of  disinter- 
estedness between  the  parties.^  Where  this  is  adhered  to  strict- 
ly, as  a  controlling  principle  governing  the  garnishee's  liability,, 
and  anything  like  the  common  law  relation  of  husband  and 
wife  i8  preserved,  there  can  be  no  doubt  that  the  wife  is  an 
improper  party  to  summon  as  garnishee,  in  an  action  against 
the  husband.  But  when  they  are  treated  as  distinct  individu- 
als for  all  civil  purposes,  there  is  no  reason  why  she  should  be 
exempt.  When  it  was  sought  to  charge  the  wife  as  garnishee, 
in  Louisiana,  her  exemption  was  placed  upon  a  ground  wliich 
is  probably  peculiar  to  their  system  of  jurisprudence.  It  was 
held  that  the  proceeding  against  her  was  a  suit,^  and  judg- 
ment could  not  be  entered  against  her,  unless  she  had  first 
been  authorized  by  her  husband,  or  the  Judge  of  the  Court,  to 
appear  in  response  to  the  citation,  and  defend  the  action.^ 
Where  so  much  of  the  common  law  governinsj  the  marital 
rights  remains,  as  makes  it  necessary  to  join  the  husband  as 
defendant  in  actions  against  the  wife,  it  would  be  impossible  to 
make  either  the  wife  or  the  husband  a  third  party  to  a  suit 
against  her  and  her  husband.  The  case  would  pi'csent  the 
anomalous  feature  of  one  of  the  parties  occuying  the  positions 
of  principal,  defendant,  and  garnishee. 

§  351.  Debtors  and  Partners  as  Garnishees. — ^Where  judg- 
ment is  rendered  against  two  defendants,  each  is  liable  in  soli- 
do,  and  not  merely  iu  a  moiety  of  the  judgment.  To  render 
one  of  the  judgment  debtors  liable  as  garnishee  for  the  same 
debt,  it  would  be  necessary  to  release  him  from  the  judgment, 
which  could  not  be  done  without  acknowledging  satisfaction 
as  to  both. ^  The  question  arises,  in  this  connection,  whether- 
where  two  or  more  parties  are  jointly  indebted,  in  a  suit  against 
them  by  attachment,  either  may  be  summoned  as  garnishee  T 
The  statement  of  the  proposition  would  seem  to  furnish  an:  an- 

^Ante,  §  332;  Supra,  §§  348,  349. 

2  Ante,  §  332. 

8  Delacroix  v.  Hart,  24  La.  An.  141. 

1  Bailey  v.  Lacey,  27  La.  An.  39;  Eicbaxdson  v,  £ace7,  Id.  62. 

n.  Attach.— 4. 


§    351  PARTIES    TO   THE   PROCEEDING.  50 

swer  in  the  negative,  unless  a  party  may  be  garnished  in  an 
action  against  himself.  Where  they  are  both  jointly  and  sev- 
erally indebted,  and  the  plaintiff  is  at  liberty  to  proceed  di- 
rectly against  either  or  both,  as  he  may  elect,  the  proposition 
is  not  so  clear.  If  the  garnishee  is  summoned  in  an  action 
against  his  coobligor,  it  will  be  in  the  exercise  of  a  capricious 
choice  of  remedies  against  the  garnishee.  The  principle  that 
he  should  be  a  disinterested  third  party  is  almost  universally 
recognized,  at  least  as  a  generality,  and  is  only  departed  from  in 
cases  of  apparent  necessity,  where  it  seems  the  only  means  of 
rendering  the  remedy  effective.  But  a  case  can  hardly  be 
Imagined,  where  the  creditor  could  gain  any  advantage  from 
proceeding  against  one  of  several  co-debtors,  and  serving  pro- 
cess of  garnishment  on  one  against  whom  he  might  have  pro- 
ceeded directly.  In  the  end,  he  will  only  have  judgment 
against  the  garnishee,  and  this  he  might  have  against  the 
same  party  in  his  capacity  of  debtor,  by  a  direct  action.  There 
would  be  no  ground  of  necessity  for  the  introduction  of  a  gar- 
nishee who  was  so  directly  interested  in  the  main  action. 

As  to  whether  one  member  of  a  co-partnership  may  be  sum- 
moned as  garnishee  in  an  action  against  his  co-partner,  to  sub- 
ject the  interest  of  such  co-partner  to  the  judgment  obtained 
in  the  action,  presents  a  question  that  has  been  more  generally 
contested.  Such  a  method  may  be  resorted  to  for  such  a  pur- 
pose when  authorized  by  statute.^  But  it  must  not  be  over- 
looked, that  the  proceeding  by  garnishment  is  purely  statutory. 
It  gains  all  its  force  from  positive  enactment ;  can  only  be  era- 
ployed  in  the  cases  provided  for  by  statute;  must  look  to  the 
statute  for  its  process ;  its  scope  cannot  be  enlarged  to  meet 
exigencies  unprovided  for  by  the  legislature.  Garnishment 
cannot  be  resorted  to  as  a  substitute  for  direct  levy,  upon 
grounds  of  supposed  hardship  in  the  latter  remedy,  unless  the 
legislature  has  so  prescribed.^     In   Treadwell  vs.  Brown^    it 

2  "Willis  V.  Henderson,  43  Ga.  325. 

3  Ante,  §  333.  In  California,  it  is  provided  by  the  Code  of  Civil  Procedure 
(§  542)  that  personal  property  not  capable  of  manual  delivery  may  be  attach- 
ed, by  leaving  with  the  person  owing  the  debt,  or  having  in  his  possession,  or 
under  his  control,  such  credits,  etc.,  a  copy  of  the  writ  and  notice  of  attach- 
ment; and  this  mode  is  held  to  apply  to  growing  crops,  whether  in  possession 
of  defendant  or  another. — Raventas  v.  Green^  57  Cal.  254;  Davis  v.  McFar- 


51  PARTIES    TO   THE   PROCEEDING.  §    351 

was  laid  down  that :  "  The  sound  and  well  established  principle 
is,  that  one  shall  never  be  adjudged  trustee  (garnishee)  if  by 
any  reasonable  possibility  he  may  be  liable  to  answer  to  any 
other  person  than  the  plaintiff."*  And  even  where  the  part- 
nership has  been  dissolved,  but  the  partnership  affairs  are  left 
unsettled,  it  is  held  in  New  Hampshire  that  the  interest  of  one 
partner  cannot  be  reached  by  service  of  this  process  on  his  co- 
partner, requiring  him  to  answer  as  to  his  supposed  indebted- 
ness to  the  attachment  defendant.^  Garnishment  is  a  legal 
proceeding,  and  unadapted  to  the  determination  of  equitable 
rights,  or  the  interests  of  members  of  a  jiartnership  in  their 
common  property  ;  and  for  this  reason  the  garnishment  of  one 
or  all  the  members  of  a  firm  in  an  action  against  one  of  the 
members  cannot  be  made  to  serve  the  purpose  of  an  attach- 
ment of  the  interest  of  such  individual  member.^  The  debt 
owing  by  the  garnishee,  when  summoned,  must  be  of  such  a 
character,  that,  upon  being  served,  he  may  pay  the  same  into 
Court,  or  at  least  answer  positively  as  to  his  indebtedness  ;  and 
not  be  compelled  to  confess  his  ignorance  as  to  the  matter  of 
inquiry,  or  await  the  determination  of  Chancery  proceedings, 
instituted  for  the  purpose  of  adjusting  partnership  accounts.' 
So  far  as  the  rule  prevails,  that  in  order  to  render  the  third  par- 
ty liable  as  garnishee  he  must  be  indebted  to  the  defendant, 
or  in  possession  of  property  for  which  he  could  be  held  liable 
in  a  direct  action  at  law,  it  must  be  regarded  as  a  positive  de- 
nial of  the  right  to  attach  by  garnishment  the  interest  of  de- 
fendant in  partnership  effects  by  service  on  his  co-partners.^ 
The  conclusion  seems  inevitable,  that  except  where  the  statute 
provides  for  this  means  of  attaching  partnership  effects  and 
credits,  they  can  only  be  reached  in  attachment  by  direct  levy, 
and  sale  of  the  interest  of  the  defendant.^     The  purchaser  of 

lane,  37  Cal.  638.  But  the  same  Court  hag  decided  that  the  interest  of  a  part- 
ner is  capable  of  manual  delivery. — Jones  v.  Thompson,  12 Cal.  198;  Robinson 
V.  Tevi3,38Cal.  611. 

4  41N.  H.  12;  43  N.  H.  290. 

5  Burnham  v.  Hopkinson,  17  N.  H.  259. 

6  Williams  v.  Gage,  49  Miss.  777. 

7  Sheedy  v.  Second  Nat'l  Bank,  62  Mo.  17.   But  see  Parker  v.  Wright,  66  Me. 
392. 

8  See  Ante,  §  335. 

9  Ante,  §  36, 


§    352  PARTIES   TO   THE   PROCEEDING.  52 

the  uncertain  interest,  whether  it  be  the  attaching  creditor,  or 
another,  may  ascertain  the  extent  and  value  of  his  purchase  by 
the  ordinary  means  provided  for  the  division  of  personal  prop- 
erty owned  in  common. 

§  352.  Judgment  Debtors  as  Garnisliees. — "Whether  judg- 
ment debtors  may  be  held  as  garnishees,  in  actions  brouglit  by 
attachment  against  the  judgment  creditor,  is  a  question  which 
involves  no  inconsiderable  conflict  of  authority,  that  cannot  be 
entirely  accounted  for  by  differences  in  the  statutes  under  which 
the  decisions  are  rendered.  Certainly  the  judgment  is  not  open 
to  the  objection  of  uncertainty  ;  that  it  is  unliquidated  ;  or  tliat 
it  does  not  furnish  a  sufficient  cause  of  action  at  law.  The 
existence  of  a  judgment  in  favor  of  one  person  and  against 
another,  is  generally  held  to  be  a  suable  demand.^  Unless  the 
amount  due  thereon  can  be  attached  by  garnishment,  it  cannot 
be  subjected  to  the  payment  of  the  attaching  creditor's  de. 
mand.  In  Pennsylvania  it  is  held,  not  only  that  such  credits 
may  be  so  applied,  but  that  the  interest  of  the  judgment  cred- 
itor may  be  attached,  though  the  judgment  be  that  of  the  Court 
of  another  State. ^  This  presents  the  extreme  views  entertained 
in  those  jurisdictions  where  such  credits  are  held  attachable, 
and  involves  the  greatest  difficulties  to  be  encountered  in  try- 
ing to  reconcile  the  conflict  of  laws  between  the  States.  In 
Iowa,  under  the  statute,  a  judgment  may  be  levied  on  and  sold 
under  execution  like  any  otlier  property,  but  it  can  be  attached 
only  by  process  of  garnishment.'^ 

§  353.  Garnisliment,  whether  Joint  or  Several. — Several  in- 
dividuals may  be  summoned  to  answer  in  the  same  suit,  and 
whether  they  are  all  named  in  the  same  summons,  or  there  be 
several  notices  issued,  is  of  no  consequence  as  affecting  their 
obligation  to  answer.  If  they  are  summoned  as  partners  to 
answer  as  to  the  indebtedness  of  the  partnership  to  the  debtor, 
the  answer  of  one  may  stand  for  all.^     Service  upon  one  or 

i  See  Post,  §  497. 

2  Jones  V.  N.  Y.  &  E.  E.  Co.,  1  Grant  Cas.  454. 

8  Ochiltree  v.  M.  I.  &  N.  R.  Co.,  49  la.  150. 

1  Anderson  v.  Wagner,  5  How.  (Miss.)  587.  But  if,  when  summoned,  he  de- 
clares that  he  is  not  indebted  to  defendant,  and  nothing  further  appears,  he 
should  be  discharged. — Macomber  v.  Wright,  35  Me.  156.    Post,  §  359. 


53  PARTIES   TO   THE   PROCEEDING.  §    353 

more  of  such  partners,  they  being  residents  of  the  State,  and 
their  business  being  carried  on  within  such  State,  is  held  to 
bring  the  credit  so  attached  within  the  jurisdiction  of  the 
Court,  even  where  the  copartners  are  non-residents,  and  the 
garnishment  of  non-residents  is  prohibited.^  But  it  is  held 
where  the  debt  attached  was  that  of  a  copartnership,  and  one 
of  the  members  of  the  firm  was  garnished,  and  answered,  ad- 
mitting such  jiartnership  indebtedness,  the  creditor  would  be 
understood  to  have  proceeded  against  one  only,  and  the  judg- 
ment should  be  against  the  partner  so  answering,  and  would 
survive  against  his  personal  representatives.^  Where  two 
persons  are  garnished  as  partners,  one  of  whom  subsequently 
dies  prior  to  judgment,  the  proceeding  may  be  prosecuted  to 
judgment  against  the  other  as  surviving  partner;  the  appel- 
late Court  will  presume  that  the  necessary  proof  of  death  was 
made  in  the  Court  below. ^  Any  number  of  persons,  whether 
indebted  to  defendant  jointly  or  severally,  may  be  joined  in  the 
same  writ  of  garnishment,  and  such  joinder  will  not  be  a  suf- 
ficient ground  for  a  plea  in  abatement.^  But  the  fact  that 
they  are  named  in  the  same  writ  or  notice,  does  not  render  it 
incumbent  upon  them  to  unite  in  their  answer  ;  nor  that  their 
answers,  when  separately  made,  shall  be  considered  in  relation 
to  each  other.  The  disclosures  made  by  one  cannot  be  taken 
in  aid  or  explanation  of  those  made  by  another ;  but  each  may 
be  held  liable  or  discharged  only  on  his  own  disclosures.^ 
This,  however,  must  be  understood  to  apply  only  where  their 
alleged  liability  to  defendant  is  several.  Where  they  are  so 
united  as  to  show  that  their  liability,  if  any  exists,  is  that  of 
partners,  the  answer  of  one  for  himself  and  co-debtors  will 
bind  all.'  And  where  they  are  thus  joined  in  the  same  writ, 
it  is  held  to  be  error  unless  there  be  sufficient  allegations  in 
the  writ,  showing  that  their  liability  was  joint,  as  partners  or 
joint  debtors.^ 

2  Pecks  I'.  Barnum,  24  Vt.  75;  Speak  v.  Klnsey,  17  Tex.  301. 

3  Travis  v-  Tartt,  8  Ala.  574.    See  Brealsford  v.  Mead,  1  Yeates,  488;  EUicott 
V.  Smith,  2  Crancli  C.  C.  542. 

^  Gaines  v.  Beirne,  3  Ala.  114. 

6  Curry  v.  Woodward,  50  Ala.  258. 
e  Kundlet  r.  Jordan,  3  Me.  47. 

7  Pecks  V.  Barnum,  24  Vt.  75. 

8  Thorn  v.  Woodruff.  5  Ark.  55.    See  Post,  Ch.  XXXIX. 


§   354  PAETIES   TO  THE  PEOCEEDING.  54 

Where  a  part  only  of  several  joint  contractors  are  garnished, 
it  is  held  that  those  summoned  may  be  allowed  any  set-offs 
that  exist  in  favor  of  their  copartners  who  are  not  served.^ 

Where  several  are  jointly  indebted  to  the  principal  defend- 
dant,  all  should  be  served  with  process  of  garnishment."^  But 
it  has  been  held  that  a  garnishee  will  not  be  heard  to  object 
at  the  hearing  of  the  scire  facias,  for  the  first  time,  that  his 
co-debtor  was  not  summoned.^^ 

So  where,  when  the  garnishee,  when  summoned,  was  unknown 
to  be  indebted  jointly  with  others,  it  was  held  that  the  gar- 
nishment was  not  invalidated  by  a  subsequent  disclosure  of 
the  fact  that  the  debt  in  respect  to  which  he  was  summoned 
was  contracted  by  himself  and  four  others. ^^ 

But  if  the  garnishee's  answer  shows  that  he  is  indebted  to 
defendant  and  another,  and  nothing  further,  he  should  be  dis- 
charged.^^ 

Where  one  only  of  several  joint  and  several  debtors  is  sum- 
moned as  garnisher  of  the  creditor,  his  co-debtor  may  pay  the 
debt  pendente  lite,  and  discharge  the  garnishee  as  well  as  the 
one  paying.^* 

Nevertheless,  it  is  held  that  where  a  member  of  a  firm,  living 
in  Massachusetts,  was  served  as  garnishee,  and  his  copartners 
were  non-residents,  the  process  would  hold  funds  of  an  abscond- 
ing debtor,  which  the  resident  partner  had  in  his  possession.^^ 

§  354.  Interveners. — ^It  is  in  some  cases  held  the  proper 
course  for  the  Court  to  pursue,  where  the  answer  of  the  gar- 
nishee shows  that  the  property  is  claimed  by  a  stranger  to  the 
proceeding,  to  require  such  claimant  to  appear  and  maintain 
his  rights.     It  was  so  held  where,  under  the  Virginia  statute,  a 

9  Hathaway  v.  Russell,  16  Mass.  472. 

10  Hoskins  r.  Johnson,  24  Ga,  625 ;  EUicott  v.  Smith,  2  Cranch  C.  C.  542  ; 
Kidder  v.  Packard,  13  Mass.  80  ;  Pattis  v.  Spaulding,  21  Vt.  66  ;  Rix  v.  Elliot, 
1  N.  H.  184  ;  Reid  v.  McLeod,  20  Ala.  576  j  "Warner  v.  Perkins,  8  Cush.  518  ; 
Singer  v.  Townsend,  53  Wis.  126. 

11  Hoyt  V.  Robinson,  10  Gray,  371. 

12  Hawley  v.  Atkinson,  39.  Conn.  309. 

13  Hawes  v.  Waltbam,  18  Pick.  451 ;  Hanson  v.  Davis,  19  N.  H.  133  ;  Fisk  v. 
Herrick,  6  Mass.  271 ;  French  v.  Rodgers,  16  N.  H.  177.  But  see  Whitney  v, 
Munroe,  19  Me.  42. 

"  Jewett  V.  Bacon,  6  Mass.  59, 

15  Parker  v.  Danf  orth,  16  Mass.  299. 


55  PARTIES   TO   THE  PROCEEDING.  §    354 

corporation  was  summoned  as  garnishee  of  a  stockholder,  and 
answered  that  the  stock  in  question  was  claimed  by  a  stranger.^ 
But  as  a  rule,  such  parties,  seeing  their  interests  jeopardized, 
will  appear  voluntarily.  And  when  it  appears,  by  the  showing 
made  by  such  stranger  to  the  proceeding,  or  otherwise,  that 
he  is  interested  in  the  result,  he  should  upon  his  own  request 
be  made  a  party .^  But  a  bill  of  interpleader,  being  an  equita- 
ble proceeding,  has  been  denied  to  a  complainant  on  the  general 
ground  that  he  had  an  adequate  remedy  at  law.^  In  Iowa, 
when  the  property  is  claimed  by  prior  assignment,  the  assignee 
may  assert  his  claim  by  filing  a  petition  of  intervention,  and 
such  petition  is  held  sufficient  notice  to  the  garnishee.^  When 
the  party  claiming  adversely  to  plaintiff  wishes  to  take  issue 
on  the  answer  of  the  garnishee,  it  seems  to  be  necessary  in  Ala- 
bama that  he  shall  "  intervene  "  in  some  manner,. in  order  to 
entitle  hira  to  be  heard  in  objecting  to  irregularities  in  the  pro- 
ceedings.^ And  in  Kentucky,  under  the  chancery  practice  of 
that  State,  a  bill  of  interpleader  may  be  filed  by  the  garnishee 
claiming  the  fund,  but  he  is  required  to  bring  the  money  into 
Court,  or  give  some  security  for  its  ultimate  payment  accord- 
ing to  the  decree.  And  where  there  are  several  bills  pending, 
to  subject  the  same  demand  to  the  satisfaction  of  different 
debts,  the  actions  may  be  consolidated.^  Intervention,  how- 
ever, is  not  always  as  essential  in  cases  of  garnishment,  as 
where  the  property  attached  is  actually  seized.  The  gar- 
nishee in  possession,  if  notified  of  the  transfer  at  the  time  of 
the  answer,  will,  for  his  own  security,  show  that  the  property 
claimed  does  not  belong  to  the  defendant.^  The  necessity  for 
intervention,  by  a  claimant  of  specific  property  would  be  most 
imperative  where  no  such  notice  had  been  given.  When  the 
subject  of  attachment  is  a  debt  due  from  the  garnishee  to  the 
defendant,  notice  is  an  essential  element  of  the  transfer,  and 
where  that  has   been  given,  his  payment  to  the  attachment 

1  Chesapeake  etc.  E.  Co.  v.  Paine,  29  Gratt.  502. 

2  Crone  v.  Brann,  23  Minn.  239.    See  Shehan  v.  Marston,  132  Mass.  161. 
8  Carroll  v.  Parkes,  1  Baxter  (Tenn.),  269. 

*■  Daniels  v.  Clark,  38  la.  556. 

^  Edmondson  v.  De  Kalb  Co.,  51  Ala.  103;  See  Morin  v.  Bailey,  55  Miss.  570. 

6  Biggs  V.  Kouns,  7  Dana,  405. 

'  Montague  v.  Myers,  11  Heisk.  539. 


§    355  PARTIES    TO    THE    PROCEEDING.  56 

creditor  will  no  moi'e  release  him  from  liability  to  the  assignee 
of  the  debt,  than  it  would  if  payment  were  made  to  the  as- 
signor.^ It  is  held,  not  only  that  notice  to  the  debtor  is  ef- 
fectual to  complete  the  assignment  of  a  chose  in  action,  but 
that  in  the  absence  of  such  notice  the  debtor  may  pay  his  orig- 
inal creditor.^  And  this  doctrine  goes  so  far  as  to  hold  the 
transfer  of  the  debt  to  be  ineffectual  as  against  creditors  of  the 
assignor,  unless  the  debtor  has  been  notified.^*^  But  in  Stevens 
vs.  Stevens,^^  the  assignment  was  held  good  as  against  attach- 
ing creditors,  where  the  garnishee  received  notice  prior  to  his 
answcr.^^ 

The  intervenor's  right  to  interpose  his  claim  is  dependent 
entirely  upon  the  attachment  proceedings.  When  they  are  at 
an  end,  by  dismissal  of  the  suit  or  discharge  of  the  garnishee 
for  any  reason,  the  Court  will  not  entertain  his  interplea,  in 
order  to  allow  him  in  that  case  to  obtain  iudo-ment  ajrainst  the 

JO  o 

garnishee. 

§  355.  Reference  to  other  Chapters. — In  following  out  the 
line  of  Inquiry  as  to  who  may  properly  be  made  the  third 
pjirty  to  a  proceeding  by  garnishment,  it  has  been  necessary 
to  trench  somewhat  upon  the  domain  of  a  subsequent  chapter, 
which  treats  of  the  capacity  in  which  property  is  held,^  as  well  as 
that  relating  to  the  capacity  in  which  the  garnishee  is  indebted? 
This  was  almost  unavoidable,  and  might  have  also  embraced 
trustees,  personal  representatives,  receivers,  and  others  holding 
property  in  a  representative  capacity ;  but  the  questions  in 
these,  being  more  uniformly  governed  by  considerations  of  the 
peculiar  relations  that  grow  out  of  a  holding  of  the  particular 
property,  than  are  the  third  parties  particularly  mentioned  in 

8  Fanton  v.  Fairfield  Co.  Bank,  23  Conn.  485;  Jones  v.  Witter,  13  Mass.  30i; 
Raymond  v.  Squire,  11  Johns,  47;  Small  v.  Browder,  11  B.  Mon.  212;  Pollard  i'. 
Somerset  Mut.  etc.  Co.,  42  Me.  221;  Fay  r.  Jones,  18  Barb.  340;  Succession  of 
Risley,  11  Rob.  (La.)  298;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  St.  354;  White  v. 
Coleman,  130  Mass.  316;  21  Am.  Rep.  66;  Dix  v.  Cobb,  4  Mass.  508. 

9  Cases  cited  supra. 

10  Dix  V.  Cobb,  4  Mass.  608. 

Ill  Ashm.  (Pa.)  190. 

12  See  also  Stockton  v.  Hall,  Hard.  (Ky.)  160. 

1  Post,  ch.  xxxn. 

2  Post,  §  454. 


57  '  TARTIES   TO   THE  PROCEEDING.  §    355 

this  chapter,  are  passed  over  for  treatment  hereafter.^  For 
the  reason  that  a  former  chapter  is  devoted  to  the  subject  of 
parties  to  attachment  suits,"  it  was  deemed  unnecessary  to  give 
much  attention  in  tlie  present  chapter  to  the  principal  parties. 
The  question  of  obtaining  jurisdiction  of  third  parties  wdl 
come  up  for  consideration  hereafter,^  as  also  the  law  governmg 
the  controversy,  when  questions  of  fact  or  law  are  at  issue  be- 
tween them  and  either  of  the  principal  parties. 

8  Post,  ch.  xxxn. 

4  Ante,  Ch.  V. 

6  Post,  Ch.  XXVI, 


CHAPTER  XXYI. 

THE  PROCESS — SERVICE   AND   RETURN. 

§  356.  Preliminaries  to  process — The  affidavit  and  bond. 

§  357.  The  process  in  garnishment 

§  358.  Amendment  of  process. 

§  359.  Service  on  the  garnishee — Co-debtors — Partners. 

§  360.  Service  on  corporations. 

§  361.  Waiver  of  service  by  garnishee. 

§  362.  Process  waived  by  defendant. 

§  363.  The  officer's  return  of  process. 

§  356.  Preliminaries  to  Process — The  Affidavit  and  Bond. 
— The  affidavit  for  garnishment  is  generally  required  in  States 
that  require  a  preliminary  aflfidavit  in  case  of  attachment  by 
direct  levy.-^  These  are  for  the  most  part  the  same  things,  the 
difference  of  their  application  being  that  in  one  case  the  writ 
is  served  by  the  seizure  of  tangible  personalty,  or  levied  on  real 
property,  while  in  the  other  the  service  is  by  garnishment  of  a 
third  party.  ^  It  is  held  in  Rhode  Island  that  the  affidavit  in 
garnishment  must  contain  positive  averments,  sworn  to  as  mat- 
ter of  knowledge  on  the  part  of  affiant,  and  that  it  will  not  be 
sufficient  for  him  to  state  the  facts  merely  as  he  "  verily  be- 
lieves "  them  to  be.^  But  this  strict  requirement  will  not  be 
found  uniform  under  the  various  statutes.*  The  important 
matter  in  any  case  is,  that  the  affidavit  shall  follow  the  statute. 
What  is  required  is  a  statement  of  facts^  and  not  conclusions 
of  law.  But  when  the  facts  are  stated  and  sworn  to  as  the 
statute  requires,  the  affidavit  will  not  be  vitiated  by  erroneous 

1  The  jurisdiction  of  a  justice  of  the  peace  is  held  to  depend  upon  the  affi- 
davit, and  the  fact  that  a  sufficient  one  was  filed  must  affirmatively  appear. 
Wells  V.  Am.  Ex.  Co.,  55  Wis.  23. 

2  Ante,  Ch.  VI. 

3  Greene  v.  Tripp,  11  R.  I.  424.  In  this  State  there  is  a  form  of  affidavit  to 
be  indorsed  on  the  writ.  Where  this  was  done  by  the  officer  as  the  agent  of 
plaintiff,  though  improper,  was  held  not  illegal,  as  he  did  not  act  as  the  agent 
of  plaintiff  in  serving  the  writ.    Carroll  v.  Sheehan,  12  R.  I.  218. 

4  Ante,  §  59;  Russell  v.  Ralph,  53  Wis.  328. 


59  THE  PROCESS — SERVICE   AND   RETURN.  §   356 

conclusions  of  law  drawn  by  the  aflSant,  as  the  Court  will  disre- 
gard the  conclusions  of  law.^  The  affidavit  was  held  fatally 
defective,  where  it  did  not  show  the  nature  of  the  contract  by 
which  defendant  was  bound.*^  The  hond  is  the  attachment 
bond  discussed  in  a  former  chapter,''  except  where  the  statute 
extends  its  provisions,  so  as  to  embrace  the  garnishee  within  its 
protection.^  Otherwise  it  is  only  given  for  the  benefit  of  the 
defendant,^  who  is  the  person  least  likely  to  be  injured  if  the  gar- 
nishment should  prove  a  failure,  for  the  reason  that  the  prop- 
erty or  credit  against  which  it  was  directed  should  not  belong 
to  him.^''  The  reasons  why  the  bond  should  not  extend  its  pro- 
tection to  the  garnishee,  as  given  in  Pounds  v.  Plamner,^^  are 
that  the  garnishee  is  protected  from  injury  in  consequence  of 
the  garnishment,  since  he  is  entitled  to  a  j^roper  allowance  for 
attendance  to  give  his  answer,  and  may  be  allowed,  in  the  dis- 
cretion of  the  Court,  proper  counsel  fees  to  guard  his  interests, 
to  be  retained  out  of  funds  in  his  hands ;  but  only  to  be  so  re- 
tained in  the  event  that  such  funds  are  condemned.  In  the 
same  case  it  is  further  held,  that  defendant  is  under  no  obliga- 
tion to  defend  the  interests  of  the  garnishee,  and  that  where 
the  debt  or  property  in  the  hands  of  the  garnishee  was  not  de- 
fendant's, he  is  not  injured  by  the  garnishment,  though  wrong- 
ful, and  as  a  consequence  there  could  be  no  liability  under  the 
bond.  In  such  case  the  fund  in  the  hands  of  the  garnishee 
could  not  be  condemned,  and  hence  the  garnishee  has  no  se- 
curity for  the  payment  of  the  allowance  provided  for  him,  in 
case  the  Court  has  exercised  its  discretion  in  his  favor.  The 
garnishee  not  being  interested  in  the  bond,  probably  accounts 
for  the  rule  that  he  will  not  be  heard  to  object  to  the  proceed- 
ing upon  the  ground  that  no  such  bond  as  the  law  requires  has 
been  filed. '^  j^^^d  it  is  also  decided  that  the  defendant  is  the 
only  one  who  can  take  advantage  of  any  errors  or  irregular- 

s  Ordway  v.  Remington,  12  R.  I.  319;  34  Am.  R.  646.    The  affiant  may  state 
facts  in  the  alternative.    Russell  v.  Ralph,  53  Wis.  328. 

6  Conway  v.  Ionia  Ct.  Judge,  46  Mich.  28. 

1  Ante,  Ch.  VIII. 

8  Barnes  v.  Webster,  16  Mo.  258;  57  Am.  Dec.  232. 

8  Ante,  §  296. 

w  Hays  y.  Anderson,  57  Ala.  374;  Pounds  v.  Hamner,  Id.  342. 
11  57  Ala.  342. 
i2Camberford  v.  Hall,  3  McCord,  345. 


§   357  THE  PROCESS — SERVICE   AND   RETURN.  60 

ities,^^  and  still  it  is  held  in  Pounds  v.  Hamner  *  *  that  it  is 
the  duty  of  garnishee  to  see  that  he  is  not  adjudged  to  pay- 
otherwise  than  according  to  law. 

The  statute  may  extend  the  protection  of  the  bond  to  any 
one  injured  by  the  attachment-  But  under  the  Massachusetts 
statute  it  is  held  that,  as  the  bond  is  there  conditioned,  no 
action  thereon  lies  at  the  suit  of  any  person  other  than  de- 
fendant, having  an  interest  in  the  property  affected.^* 

§  357.  The  Process  in  (jarnishment. — The  primary  object 
of  the  paper  served  on  the  garnishee,  however  it  may  be  styled, 
is  to  notify  the  party  so  served  that  the  credits  and  effects  in 
his  hands,  owing  or  belonging  to  defendant,  are  attached.  The 
officer  is  directed  by  the  writ  to  summon  garnishees  when 
necessary,  and  the  vrrit  is  not  vitiated  by  containing  an  order 
to  summon  defendant  as  well,  as  this  may  be  treated  as  sur- 
plusage.^ In  Missouri,  where  the  action  is  before  a  justice 
of  the  peace,  the  garnishee  is  required  to  be  served  with  a  writ- 
ten notice.^  In  any  event  it  is  legal  process,  and  should,  there- 
fore, be  confined  in  its  scope  and  purposes  to  the  end  in  view, 
which  is  to  elicit  from  the  garnishee  a  disclosure  of  property  or 
credits  in  his  hands,  which  legally  belong  to  the  defendant, 
and  not  such  as  show  an  equitable  claim  or  demand  in  his  fa- 
vor.^ It  is  only  process,  and  not  a  pleading.  It  serves  its  pur- 
pose by  notifying  the  garnishee,  and  bringing  him  into  Court 
very  much  in  the  capacity  of  a  witness,  but  liable  to  become 
an  active  party.  Hence,  any  defects  in  the  summons  or 
notice  can  only  be  reached  by  motion,  and  not  by  demurrer.* 
Where  a  written  notice  is  what  the  law  required  to  be  served 
on  the  garnishee,  it  cannot  be  substituted  with  any  other  kind 
of  notice,  nor  with  any  other  writing.  It  was  held  that  the 
original  attachment  could  not  be  served  instead  of  the  statutory 
notice,  so  as  to  give  the  Court  jurisdiction  of  the  garnishee.^ 

13  57  Ala.  S42.    Camberford  v.  Hall,  3  McCord,  345. 

14  Porter  v.  Giles,  129  Mass.  589. 

1  Layman  v.  Bean,  6  Wha       (Pa.)  181. 

2  Masher  v.  Banking  House,  6  Mo.  App.  598. 

3  Hutchison  v.  Hawley,  9  Vt.  295;  Ante,  §  335. 

4  Curry  v.  Woodward,  50  Ala.  58;  FauU  v.  Alaska  etc  Co.,  8  Saw.  420;  14 
Fed.  Rep.  C57. 

6  Railroad  v.  Todd,  11  Heisk.  (Tenn.)  549. 


Gl  THE   PROCESS — SERVICE   AND   RETURN.  §    358 

The  form  and  general  purport  of  the  summons  or  notice  differ 
in  the  different  States,  and  to  some  extent  in  different  Courts 
of  the  same  State.  In  some  it  is  simply  a  notice,  which  may 
be  followed  by  a  subsequent  citation  to  appear  and  answer  in- 
terrogatories ;  while  in  others,  the  garnishee  Is  notified  of  the 
attachment  of  effects  in  his  hands,  and  at  the  same  time  re- 
quired to  appear  and  answer  the  interrogatories.  The  answer 
demanded  may  be  the  written  one  which  garnishee  Is  required 
to  file,^  or  it  may  take  the  form  of  an  oral  examination.  It 
may  be  a  summons  to  answer  interrogatories  filed  in  Court,  or 
to  answer  specific  questions  propounded  in  the  notice  to  which 
the  examination  is  limited  by  statute.  Hence,  the  subject- 
matter  of  the  process  will  be  governed  by  what  -the  statute 
authorizes  in  that  behalf,  or  rather,  what  it  requires  garnishees 
to  do,  beyond  withholding  payment  and  retaining  control  of  the 
property  in  their  possession  subject  to  attachment.  This  lat- 
ter requirement  is  the  gist  of  the  process  in  every  State  and 
every  Court. 

In  general,  the  process  issues  from  the  Court ;  but  this  is  not 
universally  the  case,  as  it  is  sometimes  authorized  to  proceed 
from  the  officer,  when  the  garnishment  is  in  aid  of  an  execu- 
tion.''^ When  it  is  intended  to  summon  as  garnishee  a  corpora- 
tion, the  notice  should  be  directed  to  the  corporate  body,  and 
not  to  the  officer  upon  whom  it  will  be  served.^  A  summons 
that  required  the  agent  of  a  railroad  corporation  to  appear  and 
answer  as  to  the  amount  of  his  indebtedness  to  the  defendant, 
instead  of  the  indebtedness  of  the  company,  is  not  sufficient  to 
found  a  judgment  upon  against  tiie  company  as  garnishee.^ 

But  a  judgment  will  not  be  set  aside  on  account  of  amenda- 
ble defects  in  the  bond  or  attachment.-'^ 

§  358.  Amendment  of  Process. — There  may  be  defects  in 
the  writ,  which  are  of  too  serious  achai'acter  to  be  remedied  by 
amendment  after  service  on  the  garnishee.  Errors  of  equal 
gravity  may  be  discovered  in  other  papers.    And  when  the  sum- 

6  Post,  Ch.  XXVII. 

■?  Moody  V.  Alter,  12  Heisk.  (Tenn.)  142. 

8  Claflin  V.  Iowa  City,  12  la.  284;  Daniels  v.  Meinhard,  53  Ga.  359. 

9  Varnell  v.  Speer,  55  Ga.  132. 

W  Steera  v.  Morgan,  66  Ga.  562;  Somers  v.  Losey,  48  Mich.  294. 


§    359  THE  PROCESS — SERVICE   AND   RETURN.  62 

mons  or  notice  is  itself  defective  to  such  an  extent  as  to  render 
it  insufficient  as  notice  to  the  garnishee,  it  cannot  be  amended 
after  service  so  as  to  render  the  notice  or  summons  served  bind- 
ing on  the  garnishee.  The  process  by  w^hlch  the  third  party 
is  brought  into  Court  will  generally  follow  the  pleadings  and 
preliminary  papers  filed,  in  the  style  of  the  case  and  all  formal 
particulars,  and  where  an  unimportant  error  has  been  commit- 
ted, as  a  mistake  in  the  initials  of  the  name  of  one  of  the  par- 
ties, it  may  be  amended  after  service,  on  application  to  the 
Court  for  that  purpose,  and  such  amendment  will  not  discharge 
the  garnishee  from  liability.  ^ 

§  359.  Service  on  the  Garnishee. — Co-Debtors. — Partners. — 
One  of  the  first  requisites  of  a  service  of  notice  on  the  gar- 
nishee is,  that  it  shall  be  served  in  time — while  the  writ, 
whether  an  execution  or  attachment,  is  still  alive.  A  judg- 
ment obtained  against  a  garnishee  on  notice  served  after  the 
execution  was  returnable,  may  be  set  aside  on  motion  of  a 
judgment  creditor,  where,  by  reason  of  defendant's  insolvency, 
such  judgment  stands  in  the  way  of  collecting  his  claim.^  The 
time  of  service  is  also  important,  where  there  are  several  credi- 
tors seeking  to  attach  by  garnishment  the  same  fund ;  for  in 
this,  as  in  other  cases  of  attachment,  the  plaintiffs  take  prece- 
dence in  the  direct  order  of  service.^  And  the  priority  gained 
by  prior  service  is  not  affected  by  the  fact  that  the  officer  had 
in  his  possession  at  the  time  other  process  against  the  same 
party  previously  issued.^  Following  each  other  in  this  order, 
notices  of  garnishment  served  successively  take  all  that  is  left 
by  their  predecessors  as  they  are  satisfied ;  and  when  one  fails 
for  irregularity  or  fatal  defect  in  the  process,  the  one  served 
next  in  order  takes  the  place  of  the  writ  dismissed.^  And 
where  the  defendant  pays  his  debt  to  the  first  garnishor,  and 
the  latter  does  not  prosecute  his  claim  to  judgment  against  the 

1  West  V.  Piatt,  116  Mass.  308.  See  Sullivan  v.  Langly,  128  Mass.  235  ;  First 
Kat'l  Bank  v.  Weckler,  52Md.  30. 

1  Southern  Bank  of  Mo.  v.  McDonald,  46  Mo.  31. 

«  Tabot  V.  Harding,  10  Mo.  350;  Johnson  v.  Griffith,  2  Cranch  C,  C,  199;  John- 
son V.  Gorham,  6  Cal.  195. 

8  McCobb  V.  Tyler,  2  Cranch  C.  C  199. 

*  Daniels  v.  Meinhard,  53  Ga.  359. 


63  THE   PROCESS — SERVICE   AND    RETURN.  §    359 

garnishee  as  well  as  the  debtor,  the  garnishee  is  still  liable  to 
8ubse(|uent  garnishors,  who  are  not  parties  to  the  arrangement 
with  the  first,  and  the  rule  is  held  to  be  the  same  whether  the 
defendant's  claim  against  the  garnishee  is  payable  in  money  or 
in  specific  articles  of  property.^  It  is  also  essential  that  the 
party  garnished  shall  be  served  within  the  territorial  jurisdic- 
tion of  the  Court,  or  within  the  precinct  where  he  or  it  is 
bound  to  answer.^  The  difficulties  in  the  way  of  obtaining 
service  upon  foreign  corporation  and  absent  non-residents,  have 
already  been  noticed. ''  Unless  there  is  some  statutory  condi- 
tion to  the  foreign  corporation  carrying  on  its  business  within 
the  State,  that  requires  it  to  submit  to  process  as  a  domestic 
corporation,  there  is  no  way  of  summoning  this  class  of  gar- 
nishees. But  where  the  party  to  be  served  is  an  individual, 
unless  it  is  otherwise  provided,  he  may  be  effectually  served 
when  temporarily  within  the  jurisdiction  of  the  Court  from 
which  the  writ  or  notice  issues.^  The  statutory  methods  of 
constructive  service  of  summons  are  not  applicable  to  the  ser- 
vice of  process  of  garnishment.  They  are  only  effectual  with- 
in the  limits  fixed  by  statute,  and  in  the  classes  of  cases  where 
such  substitutes  for  actual  service  are  authorized.^  The  ser- 
vice must  be  upon  the  garnishee  personally,  or  by  leaving  a 
copy  of  the  writ  at  his  usual  place  of  residence.  ^^ 

Where  it  is  sought  to  charge  several  debtors  of  the  principal 
defendant,  or  several  persons  who  have  joint  possession  of  the 
property  of  defendant,  service  must  be  had  upon  each.  This 
is  generally  true  when  the  several  parties  to  be  charged  are 
jointly,  or  jointly  and  severally,  indebted.^^  "Where  the  debt  is 
joint  and  several,  service  upon  all  may  not  be  necessary  to  se- 
cure the  debt,^2  but  it  is  necessary  in  order  to  charge  all  the 

6  Wilder  v.  "Weatherhead,  32  Vt.  765. 

STamm  v.  Williams,  3  Doug.  281;  Danforth  r.  Penny,  3  Met.  (Ky.)  564; 
Clark  V.  Chapman.  45  Ga.  486;   Willet  v.  Equitable  Ins.  Co.,  10  Abb.  Pr.  193. 
"!  Ante,  §§  343,  344. 

8  Young  V.  Ross,  31  N.  H.  201.  But  it  is  held  in  Wisconsin  that  property  out 
of  the  State  cannot  be  attached  by  garnishment  of  one  within  the  State  wlio 
has  control  of  such  property.— Bates  d.  Chicago  etc.  R.  Co.,  Wis.  Leg.  N.,  May 
15,  1884. 

9  Hebel  v.  Amazon  Ins.  Co.,  33  Mich.  400. 

10  Mathews  v.  Smith,  13  Neb.  178, 
"  Haith  V.  Pfeifle,  42  Mch.  31. 

12  Post,  §  486. 


§   359  THE   PROCESS — SERVICE   AND   RETURN.  64 

debtors. ^^  The  process  should  contain  the  names  of  all  the  par- 
ties to  be  charged,  even  where  they  constitute  a  co-partner- 
ship.^* Where  the  parties  summoned  are  jointly  indebted,  the 
service  must  be  upon  each,  in  order  to  enable  the  Court  to  en- 
tertain the  proceeding  against  either,  when  those  actually 
served  see  proper  to  raise  the  question  of  the  failure  to  serve 
their  co-debtors.-^^  And  in  some  of  the  authorities  cited,  the 
doctrine  is  declared  as  stated  herein  in  reference  to  joint  debt- 
ors, wliei'C  the  debt  was  contracted  by  a  co-partnership,  which 
generally,  if  not  universally,  imposes  an  obligation  which  is 
several  as  well  as  joint. 

It  is  also  held  in  Arkansas,  that  where  defendant's  effects 
are  in  the  hands  of  several,  who  are  jointly  liable  to  him  for 
them,  and  which  are  not  under  the  exclusive  control  of  either, 
all  must  be  joined  as  garnishees  before  interrogatories  can  be 
filed  against  either.^^  Hence,  it  follows  that  to  obtain  any  judg- 
ment whatever  in  such  case  against  the  garnishees,  or  either  of 
them,  all  must  be  served.  The  only  exception  to  the  rule  that 
service  must  be  upon  all  of  several  debtors  of  defendant,  when 
they  are  jointly  liable,  is  where  they  are  indebted  as  a  co-part- 
nership, and  the  one  served  admits  the  debt  due  from  the  firm,^'^ 
or  where  those  not  served  are  non-residents  of  the  State  in 
which  the  business  is  carried  on,  and  the  action  is  brought. ^^ 
And  even  this  exception  is  not  uniformly  followed,  especially 
where  the  non-resident  partners  reside  in  a  foreign  country. ^^ 
Where  the  garnishee  is  not  legally  served,  as  where  he  was 

13  Jewett  V.  Bacon,  6  Mass.  60;  Kidder  v.  Packard,  13  Mass.  80;  Eeid  v.  Mc 
Leod,  20  Ala.  576. 

14  Eeid  V.  McLeod,  20  Ala.  576. 

15  Hoith  V.  Pfeifle,  42  Mich.  31;  Wellover  v.  Soule,  30  Mich.  481;  Hoiti'.  Rob- 
inson, 10  Gray,  371;  Hathaway  v.  Russell,  16  Mass.  473;  Haskins  v.  Johnson, 
24  Ga.  625;  Sabin  v.  Cooper,  15 Gray,  582;  Hudson  v.  Hunt,  5  X.  H.  538;  Rix  v. 
Elliot,  1  N.  H.  184;  Atkins  v.  Prescott,  ION.  H.  120;  Ellicott  v.  Smith,  2  Cranch 
C.  C.  543;  Pettes  v.  Spaulding,  21  Vt.  66;  Wilson  v.  Albright,  2  G.  Greene, 
125. 

16  Frizzell  v.  "Willard,  37  Ark.  478. 

"Anderson  v.  Wanzer,  5  How.  (Miss.)  587;  37  Am.  Dec.  170;  Haskins  v. 
Johnson,  24  Ga.  625;  Ellicott  v.  Smith,  2  Cranch  C.  C.  542;  Kidder  v.  Packard, 
13  Mass.  80;  Pettes  v.  Spaulding,  21  Yt.  66;  Rix  v.  Elliott,  1  N.  H.  184;  Reid  v. 
McLeod,  20  Ala.  576;  Warner  v.  Perkins,  8  Cush.  518.    Ante,  §  353. 

18  Atkins  V.  Prescott,  10  N.  H.  120;  Peck  v.  Barnum,  24  Vt.  75;  Warner  v. 
Perkins,  8  Cush.  518;  Parker  v.  Danforth,  16  Mass.  299. 

19  Kidder  v.  Packard,  13  Mass.  80. 


65  THE  PROCESS — SERVICE   AND   RETURN.  §   360 

not  required  to  appear  at  the  proper  time,  the  judgment  will 
be  void,  when  the  garnishee  does  not  appear  generally.^'' 

§  360.  Service  on  Corporations. — The  manner  in  which  ser- 
vice of  jjrocess  of  garnishment  may  be  made  on  domestic  cor- 
porations, is  in  the  majority  of  the  States  prescribed  by  statute, 
either  by  a  special  provision  in  this  connection,  or  by  analogy  to 
the  prescribed  mode  of  serving  other  process  upon  such  bodies. 
But  it  is  held  in  Georgia,  where  no  special  method  seems  to 
have  been  adopted,  that  the  only  manner  in  which  such  service 
could  be  made  was  by  personal  service  on  the  president,  or 
other  officer  at  the  time  fulfilling  the  duties  of  president,  as  at 
common  law.  Service  upon  an  agent,  under  authority  of  the 
Code  to  so  serve  summons  upon  a  defendant  corporation,  would, 
not  be  valid. ^  But  where  the  president  and  directors  of  a  cor- 
porate body  requested  the  officer  to  deliver  the  notice  to  one  of  ^ 
their  clerks,  which  he  did,  this  was  held  equivalent  to  deliver- 
ing it  to  them,  and  the  notice  was  held  well  served.^  And  it 
is  held  in  Maryland,  as  it  seems  on  very  reasonable  grounds,, 
that  the  word  "  process  "  used  in  a  statute  that  authorized  pro- 
cess to  be  served  on  the  president,  or  any  director,  or  manager, . 
or  other  officer  of  the  corporation,  was  sufficiently  comprehen- 
sive to  apply  to  service  upon  a  corporation  as  garnishee.  And. 
that  service  of  notice  of  garnishment  on  two  officers  and  direc- 
tors, was  sufficient  notice  to  the  corporation.  Also,  that  where 
the  notice  was  jjiven  to  one  of  the  directors  in  his  official  ca- 
pacity,  for  the  purpose  of  being  communicated  to  the  board  of 
which  he  was  a  member,  the  corporation  was  bound  by  it,, 
though  it  was  not  communicated.^ 

The  difference  between  the  statute  under  which  this  ruling 
was  made  and  the  Georgia  Code,  construed  in  the  case  of 
Clark  vs.  Chapman,'*  is  not  sufficient,  if  it  amounts  to  anything, 
to  account  for  the  conflicting  views  expressed  in  the  two- 
Courts.     It  is  not  sufficient,  however,  to  bind  a  corporation,, 

20  Padden  v.  Moore,  58  Iowa,  703. 

1  Clark  V.  Chapmau,  45  Ga.  486.    See  also  Hebel  t;.  Amazon  Ins.  Co.,  33  Mich. 
400. 

2  Davidson  v.  Donovan,  4  Cranch  C.  C.  578. 

*  Boyd  V.  Chesapeake  etc.  Canal  Co..  17  Md.  195. 
<45  Ga.  486. 

n.  Attach.— 5. 


§   360  THE  PROCESS — SERVICE   AND  RETURN.  66 

that  the  officer  shall  be  garnished.  If  the  intention  is  to  bind 
the  corporation  rather  than  the  officer,  the  service  must  be 
made  upon  him  as  a  representative  of  the  party  to  be  affected 
with  notice,  and  not  as  the  garnishee.  It  was  accordingly  held, 
where  there  was  an  attempt  to  garnish  a  municipal  corporation, 
by  service  uj^on  its  affairs,  and  the  notice  informed  them  that 
they  and  each  of  them,  named  officially,  was  attached  and  held 
as  garnishee,  that  such  service  gave  the  Court  no  jurisdiction 
of  the  city,  and  it  could  not  be  required  to  answer.^  But  it  is 
held  that  where  garnishment  was  served  on  an  agent  of  a  cor- 
poration, and  was  directed  to  such  agent,  although  it  would 
not  bind  the  corporation  so  as  to  require  it  to  answer,  it 
would  bind  the  agent  to  the  extent  of  any  funds  of  the  corpo- 
ration in  his  hands  due  the  defendant.** 

In  California  it  is  held  that  the  mode  of  servinof  orarnishment 
process  on  corporations  shall  conform  to  the  statutory  mode 
prescribed  for  service  of  summons.  Hence,  that  it  should  be 
served  upon  the  president  or  other  head  of  the  corporation,  or 
upon  the  secretary,  cashier,  or  other  managing  agent,  and  could 
not  be  effectually  served  upon  a  banking  corporation  by  deliv- 
ering; to  the  teller  of  the  bank.'^  When  certain  officers  are 
designated  by  statute  as  the  proper  representatives  of  the  com- 
pany to  be  served,  service  upon  other  officers  will  not  be  ef- 
fectual.^ In  Connecticut  it  is  held  under  the  statute  of  that 
State,  that  if  the  corporation  has  a  secretary  with  whom  pro- 
cess can  be  left,  it  is  not  sufficient  to  leave  a  copy  with  one 
who  is  president,  treasurer,  financial  manager,  and  general 
agent  of  the  corporation.^ 

Where  the  law  authorizes  service  upon  an  officer,  who,  when 
served,  has  not  the  property  of  defendant  in  possession  or  under 
his  control ;  but  such  property  is  in  possession  of  another  em- 
ployee of  the  corporation,  though  the  service  is  sufficient  to  bind 
the  company,  if  the  officer  served  uses  ordinary  diligence  in 
communicating  the  fact  to  the  one  in  possession,  the  corpora- 

eciaflin  v.  Iowa  City,  12  la.  284  ;  Greer  v.  Rowley,  1  Pitts.  (Pa.)  1. 

6  Daniels  v.  Meinhard,  53  Ga.  359. 

'Kennedy  v.  Hibernia  S.  and  L.  Soc,  38  Cal.  151. 

8  Northern  Central  Railway  Co.  v.  Rider,  45  Md.  24. 

8 Raymond  v.  Rockland  Co.,  40  Conn.  401. 


67  THE   PROCESS— SERVICE   AND   RETURN.  §    361 

tion  cannot  be  charged,  where  the  employee  delivers  the  prop- 
erty to  a  person  entitled  to  receive  the  same,  before  he  receives 
notice  of  the  garnishment.^'' 

When  a  corporation  is  properly  served  it  may  answer  by  its 
attorney,  who  need  not  be  a  member  of  the  corporation.^^ 
But  the  answer  must  be  sworn  to.^^ 

§  361.  Waiver  of  Service  by  Garnisliee — The  liability  of 
the  garnishee  is  in  general  de[)endent  on  process  regularly 
served.  It  does  not  arise  from  his  acquiescence,  nor  can  it  be 
avoided  by  his  resistance,  provided  it  be  founded  on  a  just  le- 
gal demand  against  him  in  favor  of  defendant,  and  the  service 
of  process  is  in  all  respects  regular.  On  the  other  hand,  his 
willingness  to  be  served  will  not  affect  the  validity  of  the  judg- 
ment.^ This  is  a  principle  that  may  be  invoked  in  behalf  of 
the  defendant  or  subsequent  garnishors,  but  must  be  taken  as 
subject  to  statutory  variation.  The  statute  may  provide  for  a 
waiver  of  service  or  the  voluntary  acceptance  of  service  by  the 
garnishee,  so  as  to  bind  the  defendant  and  subsequent  attach- 
ment creditors  as  well  as  the  garnishee  himself.  But  in  the 
absence  of  such  statute,  he  cannot  waive  service  so  as  to  ren- 
der the  judgment  binding  on  the  defendant. ^  The  same  rule 
applies  to  judgment  debtors  when  the  garnishment  is  in  aid  of 
an  execution.  A  foreign  corporation,  indebted  to  such  judg- 
ment debtor,  cannot  bind  him  by  its  spontaneous  answer  to  the 
garnishee  summons,  when  served  without  the  jurisdiction  or 
in  a  manner  not  calculated  to  bind  the  garnishee,  in  the  absence 
of  its  acquiescence.^  But  such  voluntary  appearance  has  been 
accepted  for  the  purpose  of  defeating  a  judgment  against  the 
garnishee.  Thus  where,  under  the  statute,  when  the  garnishee 
appeared  at  the  return  term,  judgment  of  condemnation  could 
not  lawfully  be  then  entered  against  him,  it  was  held  that  the 
appearance  of  the  garnishee,  being  a  corporation,  by  admission 

1"  Bates  V.  Chicago  etc.  R.  Co.,  (Wis.)  Wis.  Leg.  N.,  May  15, 1884. 

"Head  v.  Merrill,  34  Me.  586. 

12  Oliver  v.  Chicago  etc.  R.  Co.,  17  111.  587. 

1  Ante,  §  336. 

2  Raymond  v.  Rockland  Co.,  40  Conn.  401 ;  Phelps  v.  Boughton,  27  La,  An. 
692.  ;  Schindler  v.  Smith,  18  La.  An.  476. 

8  Hebel  v.  Amazon  Ins.  Co.,  33  Mich.  400. 


§    3G2  THE   PROCESS — SERVICE   AND   RETURN.  68 

of  service  made  by  the  attorney  of  the  company,  would  be 
presumed  to  have  been  made  by  authority,  and  the  admission 
would  authorize  the  judgment  against  the  garnishee.  And 
it  is  so  decided,  notwithstanding  the  recognized  insufficiency  of 
service  on  the  attorney,  he  not  being  one  of  the  designated  offi- 
cers of  the  corporation  upon  whom  service  could  be  made.* 

In  Tennessee,  the  omission  of  the  notice  required  by  statute 
is  held  to  render  the  judgment  utterly  void,  and  open  to  col- 
lateral attack.  Thus,  where  instead  of  serving  the  statutory 
notice  on  the  garnishee,  a  copy  of  the  writ  of  attachment  was 
served  on  garnishee's  agent,  the  judgment  entered  in  pursuance 
thereof  was  void.^  And  yet  in  the  same  State  it  is  held  that 
the  service  of  this  notice  may  be  effectually  waived  by  the 
voluntary  appearance  and  answer  of  the  garnishee.^  So,  in 
Mississippi  it  is  held,  that  the  garnishee  may  waive  service 
and  voluntarily  appear  and  answer  for  the  purpose,  denying 
indebtedness.'  And  in  Vermont,  that  the  voluntary  acceptance 
of  service  will  bind  the  fund  in  the  hands  of  the  garnishee,  as 
against  a  subsequent  assignee.^  So  also  is  it  held.  In  one  case 
at  least,  in  Alabama,  that  the  garnishee  was  the  only  one  who 
could  make  objection  to  the  manner  of  service  of  the  process 
garnishment.^ 

§  362.  Process  waived  by  Defendant. — The  same  objections 
do  not  exist  to  a  waiver  of  process,  or  any  other  matter  that 
concerns  the  subject  of  jurisdiction  of  the  person,  by  the  de- 
fendant in  the  main  action.  Thus,  he  may  waive  the  service 
of  process  upon  himself,  or  other  formal  defects  in  the  proceed- 
ings, and  the  judgment  against  him  will  be  valid,  and  may 
serve  as  the  proper  foundation  for  the  judgment  against  the 
garnishee.^  His  appearance  is  a  waiver  of  the  service  of  sum- 
mons, when  such  service  was  intended  to  bring  the  party  into 
Court ;  and  so  it  may  operate  as  a  waiver  of  other  mere  formal 

■*  Northern  Cent.  Ry.  Co.  v.  Ryder,  45  Md.  24. 
6  Railroad  v.  Toild,  11  Heisk.  549. 

6  Moody  V.  Alter,  12  Heisk.  142. 

7  Ray  V.  Heard,  38  Miss.  544. 

8  Gaboon  v.  IMorgan,  38  Vt.  234. 

9  Burt  V.  Parish,  9  Ala.  211. 

1  Washburn  v.  New  York  etc.  ^Mining  Co.,  41  Vt.  50. 


69  THE   PROCESS — SERVICE    AND    RETURN.  §    363 

objections.  But  when  the  objection  goes  to  an  omission  that 
is  hehl  requisite  to  give  the  Court  jurisdiction  of  the  subject 
of  tlie  action,  or  of  the  subject  matter ;  when,  in  short,  it  is  an 
objection  which  may  be  interposed  at  any  stage  of  the  proceed- 
ings, mere  appearance  is  no  waiver.  Thus,  It  is  held  that  in 
case  of  ancillary  attachment,  the  affidavit  should  allege  that 
the  plaintiff  has  commenced  an  action  against  defendant,  the 
nature  thereof,  and  the  tribunal  In  which  it  Is  pending  ;  the 
amount  of  damages  laid  in  the  action,  and  that  the  cause  of 
action  Is  just;  and  where  these  allegations  are  omitted,  the  at- 
tachment will  be  void,  and  will  not  be  cured  by  the  appear- 
ance of  defendant,  and  his  pleading  to  the  merits.  As  a  con- 
sequence, the  judgment  would  also  be  a  nullity,  and  no  judg- 
ment could  be  rendered  against  the  garnishee.^  But  the  de- 
fendant has  it  in  his  power  to  make  express  waiver  of  objec- 
tions that  concern  himself,  and  do  not  affect  the  garnishee, 
otherwise  than  to  work  a  transfer  of  the  debt  or  property  in 
question  to  the  plaintiff.  When  matters  of  this  kind  are 
passed  over  by  the  defendant,  the  garnishee  will  not  be  heard 
to  raise  objections  on  account  thereof. 

§  363.  The  Officer's  Return  of  Service.— The  return  of  the 
officer  should  in  general  be  sufficient,  not  only  to  show  that 
process  was  served,  but  should  contain  a  particular  account  of 
the  acts  done,  substantially  as  returns  are  made  of  the  service 
of  other  process,  to  the  end  that  the  Court  may  be  able  to 
judge  whether  the  service  was  made  according  to  law.^  Thus, 
where  the  Code  provided  for  serving  process  on  a  corpora- 
tion, by  delivering  the  same  to  the  president,  or  any  director 
or  manager  of  the  corporation,  and  the  sheriff  returned  that 
he  had  "  summoned  the  company  as  garnishee,"  it  was  held 
it  should  appear  affirmatively  by  the  return  upon  what  person 
or  persons  the  writ  was  served,  so  that  the  Court  could  deter- 
mine from  the  return  whether  process  had  been  properly  served 
on  the  company .2  So  to  give  a  justice  of  the  peace  jurisdic- 
tion, the  return  must  show  that  the  garnishee  was  served  with 
notice  in  writing.^ 

2  Woodfolk  V.  "Whitworth,  5  Cold.  561. 

^  Jeffries  v.  Harvie,  38  Miss.  97. 

2  Nortiiern  Cent.  R.  Co.  ?-.  Ryder,  45  Md.  24. 

8  Masher  v.  Banking  House,  6  Mo.  App.  698. 


§  3G3     THE  PROCESS — SERVICE  AND  RETURN.         70 

A  return  on  a  writ  of  garnishment  of  "  executed  "  was  held 
no  evidence  of  service.*  But  so  far  from  the  rule  being  gener- 
al, that  the  facts  showing  the  mode  of  service  must  be  specifi- 
cally set  out  in  the  return,  it  is  held,  where  the  statute  re- 
quired service  in  writing,  that  it  was  not  necessary  to  return 
with  the  attachment  a  copy  of  the  written  summons,  as  if  the  re- 
turn stated  that  a  third  person  had  been  summoned  as  garnishee, 
it  would  raise  the  inference  that  the  duty  was  legally  performed.^ 
So,  when  the  return  in  an  action  of  B.  v.  L.  was  endorsed  on 
the  summons  "  Garnished  M.  in  presence  of  J.,  March  2, 
1849,"  it  was  held  equivalent  to  a  statement  that  M.  had  been 
summoned  to  answer  as  garnishee  of  L.,  the  debtor,  and  was 
suflficient  to  support  the  attachment.^ 

In  attachment  brought  under  the  custom  of  London,  where 
the  suit  had  been  removed  from  the  Lord  Mayor's  Court  to 
the  Court  of  Queen' s  Bench  by  certiorari,  and  the  return  to  the 
certiorari  did  not  show  that  the  garnishee  resided  in  London, 
it  was  held  that  although  a  plea  with  this  omission  would 
have  been  held  bad,  the  return  was  in  the  usual  form,  and  the 
custom  would  be  taken  to  have  been  pursued.'' 

In  the  State  of  Missouri,  Courts  seem  more  strict  in  requir- 
ing full  recitals  in  officers'  returns.  There  it  is  held  that  a  re- 
turn  of  the  officer  on  a  summons  of  garnishment,  that  he  sum- 
moned the  garnishee  to  answer  touching  his  indebtedness  to 
defendant,  is  sufficient  to  give  the  Court  jurisdiction.  The  re- 
turn should  show  that  the  officer  had  attached  the  property  or 
evidences  of  debt  in  the  garnishee's  hands. ^  But,  notwith- 
standinor  the  strictness  of  the  rule  as  to  what  the  return  must 
show,  it  is  held  that  pending  a  motion  to  quash  for  defects  in 
this  particular,  the  officer  may  be  allowed,  on  application,  to 
amend  his  return.^ 

In  a  somewhat  early  case  in  the  State  of  Arkansas,  It  is 
held  that  when  pi'operty  is  attached,  either  by  direct  levy  or 
garnishment,  a  schedule  of  the  items  must  be  on  the  return  of 

4  Roy  v.  Heard,  38  Miss.  544. 

6  Lowry  v.  Clements,  9  Ala.  422  ;  Burt  v.  Parisli,  Id.  211. 

6  Bryan  v.  Lasbley,  13  Sm.  &  M.  284. 

7  Day  V.  Panpierre,  13  Ad.  &  El.  (N.  S.)  802. 

8  Norvell  v.  Porter,  G2  Mo.  309. 
»  Norvell  v.  Porter,  62  Mo.  309. 


71  THE  PROCESS — SERVICE   AND  RETURN.  §   363 

the  writ.^^  But  this  can  hardly  be  generally  required  in  cases 
of  garnishment,  as  it  is  not  necessarily  known  whether  the  gar- 
nishee has  any  of  defendant's  property  until  after  disclosure, 
which  is  one  of  the  prime  objects  of  the  process. 

There  are  strono;er  reasons  for  holdinfj  the  officer's  return  to 

ft  o 

specific  recital  when  the  notice  is  served  upon  a  corporation, 
than  when  the  service  is  made  on  a  private  individual.  The 
general  statement  that  the  garnishee  (naming  him)  was  served, 
approximates  more  clearly  to  a  precise  statement  of  what  the 
officer  has  done  in  the  discharge  of  his  duty,  than  when  the 
same  statement  is  made  in  reference  to  service  upon  a  corpo- 
ration. In  the  latter  case,  the  statement  does  not  explain  itself, 
and  there  is  abundant  opportunity  for  the  officer  to  be  wrong 
in  his  conclusions  as  to  what  constitutes  service  upon  the  gar- 
nishee. 

In  any  case,  mere  clerical  errors  in  the  return  are  held  waived 
by  appearance.^^ 

w  Desha  v.  Baker,  3  Ark.  509, 

11  Wellover  v.  Soule,  30  Mich.  481.  See  Ware  v.  Bucksport,  69  Me.  97.  Where 
the  record  shows  jurisdiction  of  tlie  person  of  garnishee,  regularly  obtained 
by  a  Court  of  general  jurisdiction,  the  garnishee  cannot  contradict  it  collater- 
ally.—Sadler  V.  Trustees  etc..  69  Miss.  572. 


CHAPTER  XXVII. 

THE    garnishee's    AXSWER. 

§  364.  The  answer  considered  generally,  and  as  a  i^leading, 

§  3(i5.  Tlie  written  answer. 

§  366.  Interrogatories  and  answer  as  a  means  of  discovery. 

§  367.  Direct  denial  of  possession  or  indebtedness. 

§  368.  Same — Disclosure  of  matters  of  belief. 

§  369.  Documents  annexed  to  the  answer. 

§  370.  Garnisliee  required  to  disclose  accounts  between  himself  and  defendant 
— Interrogatories  relevant,  and  irrelevant. 

§  371.  Disclosure  of  prior  assignment. 

§  372.  Facts  not  to  be  placed  in  issue  by  denial. 

§  373.  Exemption  as  a  defense. 

§  374.  Answer  as  to  the  capacity  in  which  garnishee  holds  property  of  defend- 
ant. 

§  375.  Garnishee's  interest  in  the  fund  or  property  attached. 

§  370.  Privileged  communications. 

§  377.  Doubtful  and  uncertain  answers  construed  against  garnishee. 

§  378.  Exceptional  cases  where  disclosure  need  not  be  certain  and  e:xplicit. 

§  379.  Tlie  Statute  of  Limitations. 

§  380.  Extent  to  which  the  answer  is  taken  as  true. 

§  381.  The  answer  as  evidence. 

§  382.  Answe-  of  prior  garnishment. 

§  383.  Amendment  of  the  answer. 

§  384.  The  doctrine  of  estoppel  applied  to  garnishees. 

§  385.  Answers  by  corporations — By  agents 

§  386.  The  effect  of  an  answer  as  a  general  appearance. 

§  387.  Exceptions  to  the  sufficiency  of  the  answer. 

§  388.  Time  within  which  answer  must  be  made. 

§  389.  Consequences  of  failure  in  answering — Garnishee's  allowance. 

§  364.  The  Answer  considered  generally,  and  as  a  Pleading, 
— The  answer  to  the  summons  in  garnishment,  which  is  consid- 
ered in  the  present  chapter,  embraces  all  the  different  statutory 
modes  of  presenting  to  the  Court  what  may  be  the  facts  in  is- 
sue between  phiintiff  and  garnishee,  or  of  bringing  to  the 
knowledge  of  tlie  Court  the  ultimate  fact  of  garnishee's  rela- 
tions Vv'ith  defendant,  either  as  debtor,  or  possessor  of  the  hit- 
ter's property.  The  rules  governing  the  answer  are  various, 
for  the  oft-repeated  reason  that  they  are  of  statutory  creation, 
and  in  some  States  are  not  uniformly  prescribed  for  different 


73  THE  garnishee's  answer.  §  364 

Courts.  One  mode  of  answering  is  adopted  for  Courts  of  gen- 
eral or  superior  jurisdiction,  and  another  for  Courts  of  special 
or  inferior  jurisdiction.  The  answer  may  amount  to  a  conten- 
tion between  the  j)lainti£f  and  the  garnishee,  or  merely  a  dis- 
closure which  leaves  the  garnishee  in  reality  to  occupy  the 
disinterested  position  theoretically  asci'ibed  to  him.^  In  some 
of  the  States  the  written  response  to  the  summons,  which  the 
statute  requires  from  the  third  party,  is  called  a  certificate — 
or  at  least  it  has  been  so  denominated — but  in  order  to  avoid 
confusion,  we  shall  adhere  to  the  name  herein  employed,  as  the 
most  general,  and  shall  endeavor  to  distinguish  between  this 
and  the  oral  examination  to  which  the  garnishee  may  be  sub- 
jected. 

In  some  jurisdictions  the  garnishee's  answer  is  treated  as  a 
pleading,  and  has  no  greater  effect  as  evidence  than  an  answer 
to  an  ordinary  petition,  complaint,  or  declaration.  It  is  so  re- 
garded under  the  statute  of  the  State  of  Missouri,  whei-e  it  is 
held  that  the  denial  of  the  answer  must  be  specific,  and  the 
garnishee  has  the  right  to  reply ;  and  the  issues  made  by  the 
denial  and  reply  are  the  sole  issues  to  be  tried  between  plaintiff 
and  garnishee,  as  ordinary  issues  between  plaintiff  and  defen- 
dant." But  even  here,  the  answer  Is  not  held  to  all  the  tech- 
nical rules  of  pleading.  Where  the  garnishee  in  his  answer 
stated  that  he  had  purchased  a  note  of  a  certain  date  and 
amount,  given  by  the  execution  defendant,  and  assigned  to  the 
garnishee  before  he  was  summoned,  and  therefore  he  owed 
defendant  nothing,  It  was  held  that  the  garnishee,  under  such 
a  denial  of  indebtedness,  might  prove  that  he  was  the  holder 
of  a  bond  or  any  other  claim  against  defendant,  exceeding  in 
amount  the  sum  of  his  indebtedness  tothe  latter.^  Elsewhere, 
it  Is  held  that  the  answer  Is  to  be  regarded  as  evidence,  but  not 
as  a  part  of  the  pleadings.  The  Interrogatories  and  answer 
are  somewhat  in  the  nature  of  a  bill  for  discovery,  and  answer, 
in  chancery.'*  When  Interrogatories  are  filed,  and  the  gar- 
nishee answers  thereto,  they  become  a  part  of  the  record,  and 

^Ante,  §32G. 

2  Davis  V.  Knapp,  8  Mo.  657  ;  McEvoy  v.  Law,  9  Mo.  48  ;  Smith  i\  Heidecker, 
39  Mo.  157  ;  Zang  v.  Stover,  2  N.  Mex.  29. 

3  Asliliy  V.  Watson,  9  Mo.  235. 
^Devries  v.  Buchanan,  10  Md.  210. 


§  365  THE  gaunishee's  answer.  74 

need  not  be  preserved  by  a  bill  of  exceptions — at  least,  it  is  so 
held  in  the  State  of  Illinois.^  In  New  York,  the  answer  or 
"  certificate "  seems  to  figure  in  the  proceedings  more  as  a 
pleading  by  which  the  issues,  if  any  there  be,  are  made  be- 
tween plaintiff  and  garnishee,  than  as  evidence  by  which  such 
issues  are  determined.  It  is  there  held  that  plaintiff  cannot 
call  upon  the  garnishee  to  undergo  an  examination,  until  the 
plaintiff  impeaches  the  verity  of  the  certificate  denying  liabil- 
ity, or  the  garnishee  practically  refuses  to  furnish  the  required 
certificate.^ 

In  "VYIsconsIn,  while  the  garnishee's  general  denial  of  indebt- 
edness may  be  treated  as  a  pleading  under  the  statute,  yet, 
where  before  Issue  joined  he  has  been  subjected  to  a  long  ex- 
amination as  to  the  particulars  of  his  dealings  Math  the  princi- 
pal, running  through  a  course  of  years,  he  may  In  his  evidence 
on  the  trial,  after  issue  joined,  explain  and  correct  mistakes 
in  his  former  answers,  without  amending  such  answers  as 
though  they  were  parts  of  a  pleading.' 

§  365.  The  Written  Answer. — Whether  the  answer  is  to  be 
regarded  as  a  pleading  or  not,  is  not  determined  by  the  fact 
that  It  is  reduced  to  writing,  as  it  comprehends  something  more 
than  a  response  to  the  summons,  or  a  general  traverse  of  the 
assumption  on  the  part  of  plaintiff,  that  the  garnishee  is  indebt- 
ed to  defendant  in  the  attachment,  or  responsible  to  him  as  the 
holder  of  his  property.  There  are  certain  Interrogatories  pro- 
pounded which  the  garnishee  Is  required  to  answer.  These  may. 
be  filed  with  the  joapers,  and  a  copy  thereof  served  on  the  gar- 
nishee, or  they  may  be  served  directly,  without  filing.  In  some 
of  the  States,  a  different  mode  of  obtaining  the  answer  is  pre- 
scribed for  inferior  Courts  from  that  which  prevails  in  Courts 
of  supei'ior  jurisdiction.  When  the  mode  Is  by  written  answers 
made  before  a  justice  of  the  peace,  the  validity  of  the  judg- 
ment depends  upon  the  answer  being  made  as  prescribed.  And 
where  the  answer  to  interrogatories  only  appeared  by  recital  In 
the  judgment  of  the  justice  of  the  peace,  to  the  effect  that  the 

6 Rankin  v.  Simonds,  27  111.  352. 
6  Carroll  v.  Finley,  2G  Barb.  61. 
TJilauber  v.  Wright,  52  Wis.  303. 


75  THE  garnishee's  answer.  §  366 

garnishee  appeared  and  admitted  the  necessary  facts  to  charge 
him,  it  was  hehl  that  he  was  not  thereby  precluded  from 
disputing  such  facts  in  a  petition  for  certiorari,  and  that  it  was 
error  to  render  judgment  against  the  garnishee  on  such  recit- 
als.^ Where  the  answer  is  in  writing,  either  by  express  re- 
quirement of  the  statute,  or  by  permission  of  the  Court, for  the 
jiurpose  of  expediting  business,  it  is  uniformly  required  to  be 
sworn  to.^  But  a  sworn  answer  in  writing  is  not  always  held 
sufficient  to  excuse  the  personal  attendance  of  the  garnishee. 
When  the  statute  requires  the,  garnishee  to  appear  in  open 
Court  and  submit  to  examination,  the  Court  is  not  bound  to 
receive  the  answer  in  writing,  as  a  substitute  therefor.^  It  is 
the  right  of  plaintiff  to  examine  the  garnishee,  or  have  his  an- 
swer taken  in  the  manner  prescribed  by  statute.  And  when 
the  party  so  summoned  has  been  notified  to  appear  and  answer, 
and  has  been  paid  his  fees  as  a  witness,  his  sworn  answer  in 
writing,  filed  as  a  substitute  for  such  personal  appearance  as 
the  statute  requires,  may  be  stricken  from  the  files ;  and  in  de- 
fault of  a  sufficient  excuse  for  the  failure  to  appear,  it  was 
held  that  judgment  was  correctly  rendered  against  such  o-ar- 
nishee,  as  for  want  of  an  answer.*  It  is  held,  under  the  Mas- 
sachusetts statute,  that  the  question  whether  one  could  be  held 
as  garnishee  or  not  was  solely  dependent  upon  the  sworn  an- 
swer to  interrogatories  of  persons  regulai'ly  summoned,  and 
could  not  be  settled  by  a  statement  of  facts  agreed  to  by  the 
plaintiff,  the  defendant,  and  the  party  summoned.^ 

§  366.  Interrogatories  and  Answer,  as  a  Means  of  Discov- 
ery.— The  interrogatories  are  an  efficient  means  for  the  discov- 
ery of  assets  supposed  to  be  concealed  in  the  hands  of  the  party 
summoned.  The  proceeding  may  be,  and  often  is,  purely  ten- 
tative on  the  part  of  plaintiff ;  who,  however,  will  hardly  pro- 
ceed without  some  kind  of  information,  as  he  necessarily  in- 

1  Pickler  v.  Rainey,  4  Heisk.  335. 

2  And  must  be  sworu  to  before  a  proper  officer.  But  where  an  answer  was 
sworn  to  before  a  notary  public  who  was  an  attorney-at-law,  and  was  subse- 
quently employed  by  the  garnishee  as  attorney  in  this  case,  the  answer  waa 
not  thereby  rendered  void.— Burrus  v.  Moore,  63  Ga.  405. 

3  Scales  V.  Swan,  9  Port.  (Ala.)  163. 
*  Penn.  v.  Pelan,  52  la.  535. 

6  Barker  v.  Tabor,  4  Mass.  81. 


§  366  THE  garnishee's  answer.  76 

curs  the  cost  of  a  failure  to  find  anything  in  the  hands  of  the 
party  summoned.  And  in  order  to  render  the  means  effectual 
to  the  end,  quite  a  latitude  of  inquiry  is  allowed,  in  some  juris- 
dictions going  to  the  possession  of  defendant's  property  at  any 
time  before  or  after  the  service  of  the  writ.^  But  this  seems 
to  carry  the  line  of  inquiry  beyond  what  may  be  fairly  regard- 
ed as  strictly  relevant  to  the  issue,  which  is  the  garnishees  li- 
ability at  the  time  of  service  of  notice  of  garnishment.^  Even 
where  the  statute  extends  the  time  within  which  the  garnishee's 
liability  may  accrue  to  the  date  of  answer,  there  could  be  no  lia- 
bility growing  out  of  the  possession  of  defendant's  property, 
prior  to  the  service  of  the  notice,  when  the  garnishee  had 
ceased  to  hold  it  when  served.  But  where  the  answer  is  re- 
quired to  disclose  any  Indebtedness  incurred,  or  property  or 
effects  coming  to  the  possession  of  garnishee  between  the  ser- 
vice of  summons  and  the  filing  of  the  answer,  a  failure  to  com- 
ply with  this  requirement  will  render  the  answer  insuflBcient, 
and  liable  to  be  stricken  out  for  this  reason.  And  where  this 
course  was  pursued,  and  judgment  rendered  as  for  want  of  an 
answer,  it  was  held  that  such  judgment  would  not  be  set  aside 
on  the  ground  of  accident  or  mistake,  it  appearing  that  the 
garnishee's  answer  was  drawn  by  the  clerk  of  the  Court,  and 
signed  by  the  garnishee  in  ignorance  of  the  omission.^  The 
action  of  the  Court  In  setting  aside  defaults,  or  in  refusing  ap- 
plications for  that  purpose,  is  usually  I'cgarded  as  discretion- 
ary, and  will  not  be  reviewed,  except  where  there  has  been  a 
manifest  abuse  of  discretion.*  The  extent  to  which  the  plain- 
tiff may  interrogate  the  garnishee  is  often  governed  by  the 
nature  of  the  facts  disclosed  by  answers  to  preliminary  ques- 
tions. Thus,  when  the  answer  discloses  a  conveyance  of  land 
by  defendant  to  garnishee,  the  latter  may  be  asked  whether 
there  was  an  agreement  that  he  should  dispose  of  the  land, 
and  account  to  defendant  for  the  proceeds,  or  any  part  thereof  ; 
and  in  case  this  is  answered  in  the  affirmative,  he  may  be  fur- 
ther interrogated  as  to  the  time  of  sale,  and  the  disposition  of 

1  Devriea  v.  Buchanan,  10  Md.  210. 

2  Wood  V.  Wall,  2i  Wis.  G47. 

3  Lawton  v.  Branch,  G2  Ga.  350. 

<  Emanuel  v.  Smith,  88  Ga.  602;  Rose  v.  Whaley,  14  La.  An,  374. 


77  THE  garnishee's  answer.  §  3G7 

the  proceeds.^  But  where  the  garnishee  had  answered,  denying 
all  knowledge  or  beljef  in  any  fact  calculated  to  charge  him,  it 
was  held  that  plaintiff  could  not  cross-examine,  or  ask  ques- 
tions for  the  purpose  of  discrediting  the  garnishee,  as  to  what 
he  might  have  told  other  persons,  or  said  on  former  occasions.^ 
The  disclosure  which  the  garnishee  is  bound  to  make  in  an- 
swer to  interrogatories  is  compulsory,  up  to  the  point  where  he 
is  capable  of  answering  intelligently,  but  no  further.  The 
principle  upon  which  he  is  charged  when  he  fails  to  show  him- 
self indebted,  is  not  that  he  is  responsible  for  his  inability,  but 
for  his  unwillingness  to  answer  fully.  There  is  a  logical  dis- 
tinction between  an  answer  which  is  unsatisfactory  for  the  rea- 
son that  it  does  not  result  as  the  plaintiff  hoped,  and  one  which 
is  manifestly  evasive. 

§  367.  Direct  Denial  of  Possession  or  Indebtedness. — Manifest- 
ly, therefore,  the  defendant  may  be  discharged  on  his  answer, 
even  when  it  falls  short  of  an  explicit  denial  of  indebtedness.^ 
A  full  and  intelligible  answer  is  all  the  Court  will  require  in 
any  case,  whether  it  results  in  the  discovery  of  attachable 
assets  or  not.^  Where  it  a2:)peai'ed  that  the  interrogatories  had 
been  answered  catagorically,  it  was  held  that  a  rule  taken 
against  garnishee  to  show  cause  why  they  should  not  be  taken 
as  confessed,  would  be  dismissed.^  Whether  the  direct  de- 
nial is  sufficient  to  discharge  the  garnishee,  must  therefore  de- 
pend in  no  small  degree  upon  whether  such  denial  is  in  answer 
to  the  interrogatory  propounded.  It  is  not  held  sufficient  in 
every  instance  that  the  party  summoned  answers  by  denying 
that  he  is,  or  was,  when  served  with  notice,  indebted  to  defen- 
dant, or  in  jiossession  of  any  of  his  property.^  But  when  the 
interrogatories  may  be  fully  answered  by  such  denial,  such  an 
answer  would  be  unobjectionable. 

And  when  the  answer  is  simply  a  denial  of  knowledge  or 
belief   as  to  the  matter  in  question,  and  it  sufficiently  appears 

6  Hazen  v.  Emerson,  9  Pick.  144. 

6  Grossman  v.  Grossman,  21  Pick.  21 ;  Thomas  v.  Price,  30  Md.  483. 

1  Harris  v.  Aiken,  3  Pick.  1  ;  Grossman  v.  Grossman,  21  Pick.  21. 

2  Garrique  v.  Sidebottom,  3  Met.  (Mass.)  297. 

8  Unmeyer  v.  Elirmann,  24  La.  An  32  ;  Barnes  v.  Wayland,  14  La.  An,  791, 
4  Eutter  V.  Boyd,  3  Abb.  N.  Gas.  (N.  Y.)  6. 


§   367  THE   GARNISHEE'S   ANSWER.  78 

that  the  garnishee's  means  of  knowledge  are  inadequate  to  a 
more  definite  and  certain  answer,  he  cannot  be  charged  as  for 
failure  or  refusal  to  answer.  Thus,  where  the  garnishee  dis- 
closed that  the  defendant  had  agreed  to  build  a  house  for  him  : 
that  he  agreed  to  pay  defendant  certain  sums  at  certain  stages 
of  the  work,  as  it  progressed  ;  that  payments  had  generally 
been  made  before  installments  became  due,  but  that  he  had  no 
means  of  ascertaining  whether,  at  the  time  the  writ  was  served, 
payments  were  in  advance  of  the  work  or  not,  it  was  held  that 
the  o-arnishee  was  not  chargeable  on  his  answer.^  This  case  is 
only  distinguishable  on  principle  from  a  later  decision  by  the 
same  Court,  by  the  most  careful  differentiation  of  the  circum- 
stances. In  the  later  case  the  doctrine  was  laid  down,  that 
where  a  garnishee  declines  to  make  a  statement  of  mutual  ac- 
counts of  long  standing  between  himself  and  the  defendant,  of 
which  he  has  kept  an  account,  upon  the  ground  that  it  is  not  in 
his  power  to  do  so,  he  is  chargeable,  although  he  discloses  his 
belief  that  the  balance  of  account  is  greatly  in  his  favor.  He 
must  state  so  much  of  the  account  as  he  has  himself  kept,  and 
state  the  other  items  according  to  the  best  of  his  recollection 
and  belief.^ 

The  only  apparent  difference  in  the  two  cases  thus  decided 
is,  that  In  the  former,  where  the  garnishee  was  held  not  charge- 
able, there  seems  to  have  been  no  pretense  of  an  account  kept 
by  the  garnishee  ;  while  in  the  latter  there  was  an  account  kept 
by  him,  which  he  refused  to  disclose,  for  no  better  reason 
than  his  Inability  to  give  the  account  In  full.  He  undertook 
to  allege  his  belief  that  the  balance  was  In  his  own  favor, 
without  showing  the  facts  so  far  as  he  could,  upon  which  such 
belief  was  based. 

Denials  that  rest  only  on  Information  and  belief  are  none  the 
less  direct  for  that  reason.  They  are  so  designated  to  distin- 
guish them  from  answers  that  avoid  the  liability  by  the  state- 
ment of  facts  upon  which  an  aflSrmatlve  defense  might  be 
based,  were  the  action  against  the  garnishee  by  his  immediate 
creditor. 

The  general  denial  of  indebtedness,  or  possession  of  defend- 

6  Harris  v.  Aiken,  3  Pick.  1. 

6  Shaw  V.  Bunker,  2  Met.  (Mass.)  376. 


79  THE  garnishee's  answer.  §  368 

ant's  property,  when  properly  responsive,  is  sufficient  to  entitle 
the  garnishee  to  a  discharge,  when  such  answer  is  not  sucess- 
fully  contestedJ  But  the  denial,  to  be  effective,  must  be  con- 
sistent with  the  rest  of  the  answer.^ 

§  368.  Same — Disclosure  of  Matters  of  Belief. — It  would 
hardly  seem  reasonable  that  the  garnishee  should  be  compelled 
to  state  his  belief  in  any  state  of  facts  which  might  be  open  to 
question  or  doubt.  It  is  held  that  he  is  under  no  obligation  to 
disclose  communications  made  to  him  by  other  persons,  though 
he  may  declare  them  in  his  answers,  if  he  is  satisfied  of  their 
truth. ^  But  such  statements  are  not  accepted  on  their  merits, 
but  because  the  garnishee,  answering  under  oath,  expresses  his 
belief  in  their  truth  ;  and  the  fact  that  such  statements  appear 
in  the  form  of  affidavits  made  by  the  persons  with  whom  they 
were  original,  lends  them  no  additional  force.  They  must  still 
be  taken  on  the  strength  of  the  garnishee's  belief  in  their  truth ; 
for  the  answer  must  be  sworn  to  by  him,  whether  upon  his 
personal  knowledge,  or  his  belief.^ 

Where  A  and  others  were  summoned  as  garnishees  of  B,  and 
disclosed  in  their  answers  that  they,  as  assignees  of  C,  an  in- 
solvent debtor  of  B,  held  moneys,  a  part  of  which  was  payable 
to  B,  who  filed  his  affidavit,  stating'  that  he  had  indorsed  to  a 
honajlde  creditor  C's  promissory  note,  which  he  held  as  evi- 
dence of  his  demand,  and  on  which  a  former  dividend  received 
of  A  and  others  had  been  indorsed,  and  no  other  receipt  had 
been  given,  the  Court  took  no  notice  of  the  affidavit,  and  ad- 
judged A  and  others  liable  as  garnishees.^ 

Where  a  letter  of  one,  not  a  party  to  the  suit,  is  offered  aa 
a  matter  of  disclosure,  on  the  strength  of  the  fact  that  it  has 
been  exhibited  to  the  garnishee,  who  authenticated  the  signa- 
ture, it  will  not,  because  of  such  authentication,  be  received 
as  though  he  had  expressed  under  oath  belief  m  Its  contents, 
nor  will  the  contents  be  regarded  as  facts  disclosed  by  the  an- 

1  Richards  v.  Stevenson,  9  Mass  312. 
8  Moore  v.  Towle,  38  Me.  133. 
iHawes  v.  Langton,  8  Pick.  C7. 
s Kelly  V.  Bowman,  12  Pick.  383. 
•Minchin  u.  Moore,  II  Mass.  90. 


§  369  THE  gaenishee's  answer.  80 

swer.*  AVhere  the  circumstances  are  such  that  it  is  manifestly 
impossible  for  the  garnishee  to  answer  positively,  the  Courts 
are  apt  to  allow  subsequent  amendments,  as  the  garnishee  may 
acquire  further  knowledge  of  facts.^ 

It  must  be  borne  in  mind,  however,  that  the  admission  of 
these  secondary  statements  goes  no  farther  than  to  acquit  the 
garnisliee  of  the  imputation  of  negligence,  or  willful  conceal- 
ment, as  the  truth  of  the  facts  thus  disclosed  will  be  open  to 
investigation  by  subsequent  proceedings.^ 

§  369.  Documents  Annexed  to  the  Answer. — Where  facts 
which  affect  the  question  of  the  garnishee's  liabilities  are  set  forth 
in  documentary  form,  they  may,  when  annexed  to  the  answer, 
with  permission  of  the  Court,  in  the  exercise  of  a  sound  discre- 
tion, be  received  as  a  part  of  the  facts  disclosed.  And  this  dis- 
cretion is  not  limited  to  such  instruments  as  go  to  sustain  claims 
of  third  persons  to  debts  for  which  the  garnishee  might  other- 
wise be  chargeable.  It  is  within  the  discretion  of  the  Court 
to  determine  how  far  such  papers  are  authentic,  and  how  far 
they  affect  the  case,  and  whether  they  are  admissible.  And 
in  the  exercise  of  this  discretion,  the  Court  is  not  limited  as  to 
time,  so  long  as  the  disclosures  are  under  its  control  and  opea 
to  further  statement  or  amendment  by  the  garnishee.  The 
affidavit  of  another  person,  which  the  garnishee  swears  that  he 
believes  to  be  true,  may  be  annexed  under  this  rule,  even  after 
the  disclosure  is  closed  and  the  case  submitted  ;  and  the  mere 
fact  that  the  document  annexed  is  cumulative  as  to  luatters 
already  disclosed,  and  for  that  reason  overloads  the  record,  is  not 
always  regarded  as  sufficient  reason  for  rejecting  it  entirely.'^ 
It  is  even  held  that  where  his  answer  discloses  the  existence  of 
papers  in  his  possession,  showing  that  the  goods  under  his 
control  do  not  belong  to  the  defendant,  he  is  not  only  not  there- 
by excused  from  submitting  to  an  examination  in  open  Court, 
but  he  may  be  required  by  order  of  Court  to  produce  the 
papers,  and  for  failure  to  do  so  may  be  punished  for  contempt.^ 

^Stackpole  v.  Newman,  4  Mass.  85. 

5 Neilsoii  V.  Scott,  1  Pace's  S.  C.  Digest,  SO-    (Unreported,  Dec,  1826.) 

6  Post,  Ch.  XXVIII, 

1  Bell  V.  Jones,  17  N.  H.  307. 

^  Kutter  V.  Boyd,  3  Abb.  N.  Cas.  6. 


81  THE   garnishee's   ANSWER.  §   370 

3"0.  Garnishee  required  to  disclose  Account  between  himself 
and  defendant — Interrogatories  Relevant  and  Irrelevant. — Tlie 
disclosure  of  accounts  between  the  defendant  and  garnishee 
is  one  of  the  usual  purposes  for  which  interrogatories  are  pro- 
pounded. Plaintiff  is  not  required  to  rest  content  with  the 
bald  statement  of  garnishee,  as  to  whether  he  is  indebted,  or 
whether  defendant  owns  property  in  his  possession,  as  direct 
answers  to  these  general  interrogatories  may  be  mere  conclusions 
of  law  as  to  what  constitutes  indebtedness  or  ownership.^  There- 
fore it  is  no  valid  objection  to  an  interrogatory  that,  in  order  to 
answer  it,  the  garnishee  must  make  a  statement  of  accounts 
between  himself  and  the  defendant.^  Nevertheless,  this  priv- 
ilege of  interrogating  the  party  summoned  is  one  which  the 
Courts  guard  with  reasonable  restrictions  to  prevent  its  abuse. 
The  plaintiff,  in  exercising  it,  cannot  go  beyond  the  design  of 
the  statute,  which  is  to  charge  the  garnishee  with  property  or 
effects.  Hence,  where  the  interrogatories  assume  that  gar- 
nishee is  a  creditor  to  defendant,  or  judgment  debtor,  and  the 
questions  are  asked  from  that  point  of  view,  the  Court  may 
relieve  the  garnishee  from  answering.^  Such  disclosure  may 
be  required  when  an  execution  has  been  issued  against  a  judg- 
ment debtor,  under  the  same  restrictions  as  apply  where  it  is  a 
case  of  original  attachment.^  It  is  also  held  that  the  garnishee 
will  not  be  excused  from  answering  interrogatories  relevant  tO' 
proper  matters  of  inquiry,  for  the  reason  that  his  answer  may 
tend  to  impair  his  title  to  real  estate.^  He  is  also  bound  to 
answer,  where  the  question  seeks  to  disclose  the  fraudulency  of 
a  bill  of  sale  to  himself;  the  constitutional  provision  against 
requiring  one  to  furnish  evidence  against  himself  being  held 
not  to  apply  to  cases  w^here  mere  rights  of  property  are  in 
question.^  Yet  It  Is  held  that  a  simulated  or  fraudulent  title 
cannot  be  attacked  by  process  of  attachment  and  garnishment.^ 

1  Mansfield  v.  New  England  etc.  Co.,  58  Me.  35. 

2  Request  v.  Steamer  B.  E.  Clark,  13  La.  An.  210  ;  Shaw  v.  Bunker,  2  Met.. 
(Mass.)  376. 

8  Request  v.  Steamer  B.  E.  Clark,  13  La.  An.  210. 
*  Shaughnessy  v.  Fogg,  15  La.  An.  330. 
6  Bell  V.  Kendrick,  8N.  H.  520. 

8  Devoll  V.  Brownell ,  5  Pick.  448 ;  Oberteuffer  V  Harwood,  2  McCrary  C.  C.  415» 
T  Kearney  v.  Nixon,  19  La.  An.  16. 
n.  Attach.— 6. 


§  371  THE  garnishee's  answer.  82 

So  it  is  held,  and  is  generally  the  rule,  that  for  purposes  of 
disclosure  the  garnishee  cannot  be  required  to  answer  inter- 
rogatories relative  to  matters  occurring  subsequent  to  the  ser- 
vice of  the  summons,  and  which  he  states  in  his  disclosure  are 
in  no  way  connected  with  the  transactions  between  himself  and 
defendant  prior  to  the  service  of  the  writ.^  Though  this  doc- 
trine would  be  subject  to  modification,  where  the  statute  subjects 
eifects  and  credits  coming  to  the  hands  of  the  garnishee  at  any 
time  prior  to  answer,  to  plaintiff's  judgment.^  The  right  of 
discovery  cannot  be  exercised  by  the  plaintiff  in  any  case,  for 
ulterior  purposes.  And  where  garnishee  denies  indebtedness 
or  liability,  as  the  possessor  of  defendant's  property,  he  cannot 
be  charged  for  refusal  to  answer  questions  which  have  no  ten- 
dency to  elicit  facts  relative  to  the  issue  between  plaintiff  and 
himself. ^^  He  is  not  bound  to  submit  to  an  inquisition  em- 
bracing every  conceivable  matter  of  account,  without  objection. 
His  riglit  to  object  does  not  depend  upon  a  judicial  determina- 
tion that  his  objection  is  valid.  He  has  a  right  to  have  the 
question  of  the  relevancy  or  competency  of  the  interrogatory 
passed  upon  under  his  objection,  and  if  such  objection  prove 
unfounded,  should  be  permitted  to  answer.  It  is  held  error  in 
such  a  case  to  refuse  to  permit  the.  garnishee  to  answer,  and 
because  of  his  contesting  the  propriety  of  the  interrogatory, 
charse  him  as  though  he  failed  or  refused  to  answer.  ^^ 

§  371.  Disclosure  of  Prior  Assignment. — Where  the  gar- 
nishee, without  negligence,  answers  as  to  all  the  facts  concern- 
inir  tlie  matters  in  issue  which  have  come  to  his  knowledge,  he 
will  be  protected,  though  judgment  may  go  against  him  on  his 
answer,  after  a  honafide  sale  or  assignment. ^ 

Where  the  debt  due  from  the  garnishee  has  been  assigned 
so  as  to  work  an  effectual  transfer  of  interest,  the  debtor  must 
have  notice  of  the  fact,  and  may  safely  deny  any  further  in- 
debtedness to  the  defendant  in  the  attachment  suit.^     Indeed, 

8  Humphrey  v.  "Warren,  45'  Me.  216  ;  Wood  v.  Wall,  24  Wis.  647. 

9  Franklin  Ins.  Co.  v.  West,  8  Watts  &  S.  350. 

10  Lyman  v.  Parker,  33  Me.  31. 

11  Sawyer  v.  Webb,  5  la.  315v 

1  Golsan  v.  Powell,  32  La.  An.  1521» 

2  Simmons  v.  Guyon,  57  Ala.  111. 


83  THE  garnishee's  answer.  §  371 

he  cannot  safely  answer  otherwise.  When  there  has  been  an 
equitable  assignment,  or  setting  apart  of  a  fund  for  the  pay- 
ment of  a  particular  creditor,  the  holder  of  such  fund  cannot 
be  held  as  garnishee  of  the  original  assignor.^  So,  where  there 
is  a  general  assignment,  for  the  benefit  of  creditors  of  the  de- 
fendant in  attachment,  a  debt  due  him  cannot  be  attached  by 
garnishment  of  his  debtor;  and  such  debtor,  having  notice  of 
the  assignment,  is  bound  for  his  own  security  to  disclose  it  in 
his  answer.*  Where  the  garnishee  admits  by  his  answer  that  he 
has  funds  of  the  defendant  in  his  hands,  and  an  adverse  claimant 
proves  a  valid  assignment  of  a  portion,  whether  such  assignment 
is  disclosed  by  the  answer  or  not,  the  garnishee  will  be  held  on 
his  answer  for  the  surplus  over  and  above  what  was  assigned.^ 
The  bare  denial  of  liability  to  defendant  will  not  suffice  in 
every  instance,  where  there  has  been  a  transfer  of  the  debt  of 
which  the  garnishee  has  received  notice.  In  some  of  the  States 
provision  is  made  for  bringing  in  the  assignee  to  contest  the 
matter  with  the  plaintiff  in  attachment.  Where  this  provision  is 
made,  it  is  as  essential  to  the  validity  of  the  judgment  that  such 
assignee  shall  receive  proper  notice  of  the  pendency  of  the  ac- 
tion, as  that  the  garnishee  shall  be  served.^  Where  this  pro- 
vision is  in  force,  it  would  seem  incumbent  on  the  garnishee  to 
disclose  in  his  answer  all  such  assignments  as  had  come  to  his 
knowledge.'^  When  it  is  stated  in  the  answer  that  the  gar- 
nishee has  been  informed  of  a  transfer  of  property  of  defend- 
ant, by  the  person  claiming  to  be  the  transferee,  at  the  same 
time  admitting  the  possession  of  such  property,  this  is  held 
sufficient  to  prevent  the  judgment  going  against  the  garnishee 
on  the  answer.^  But  where  such  a  judgment  is  rendered,  and 
the  garnishee  pays  the  money  originally  due  from  him  to  de- 
fendant into  Court,  he  does  not  thereby  escape  liability  to  the 
assignee  whom  he  has  failed  to  notify,  and  whose  rightful 
claim  he  neglected  to  set  forth  in  his  answer.^ 

8  Dresser  v.  McCord,  96  III.  389 ;  Center  v.  McQuesten,  24  Kan.  480 ;  "WiUiamS 
V.  Pomeroy,  27  Minn.  85. 
^Dehner  v.  Helmbacher  etc.  Mills,  7  111.  App.  47. 
6  Giles  V.  Ash,  123  Mass.  353. 
'Simmons  v.  Guyon,  57  Ala.  111. 
T  Smith  u.  Ainscow,  11  Neb.  476. 
8  Sexton  V.  Amos,  39  Mich.  695. 
"Smith  V.  Aiuscow,  11  Neb.  476. 


§  371  THE  garnishee's  answer.  84 

Where  the  transfer  took  place  prior  to  the  commencement 
of  tlie  action,  it  was  held  immaterial  that  the  garnishee  was  not 
notified  until  after  the  service  of  notice  of  garnishment,  and 
the  beginning  of  the  suit.  He  was  bound  to  disclose  his  knowl- 
edge of  the  assignment,  and  for  failure  to  do  so,  after  paying 
over  the  money  in  satisfaction  of  the  judgment  against  him  as 
garnishee,  could  not  defend  the  action  by  the  assignee,  by  a 
plea  of  former  recovery.^" 

Under  no  circumstances  is  candor  on  the  part  of  the  gar- 
nishee more  essential,  than  when  he  has  been  notified  of  an 
assignment  of  a  debt  originally  due  from  himself  to  the  de- 
fendant. Such  assignments,  or  pretended  assignments,  may 
assume  so  many  shapes  as  to  bewilder  the  debtor,  and  leave 
him  in  doubt  as  to  who  his  creditor  really  is;  and  the  only  safe 
course  is  to  state  the  facts  as  they  have  come  to  his  notice, 
leaving  the  difficult  problem  of  his  liability  to  be  solved  by  the 
Court.  One  of  the  difficulties  in  the  way  of  a  debtor  so  situ- 
ated, is  to  determine  whether  valid  assignment  may  be  made 
of  unearned  wages.  On  general  principles,  a  mere  possibility 
of  indebtedness  cannot  be  assigned. ^^  Nevertheless,  it  is  held 
that  where  there  is  an  existing  employment,  future  wages  to 
accrue  thereunder  may  be  effectually  assigned. ^^  Acceptance 
of  an  order  to  pay  a  certain  sura  out  of  any  balance  which  may 
appear  to  be  due  on  a  settlement  with  the  drawer,  is  held  to 
take  precedence  of  a  subsequent  garnishment,  though  the  ac- 
ce[)tance  and  the  garnishment  both  occurred  prior  to  the  settle- 
ment, and  also  that  finding  that  the  assignment  to  the  acceptor 
was  fraudulent  did  not  affect  the  payee  of  the  order. ^'^  But 
when  the  notice  of  garnishment  is  served  prior  to  acceptance 
of  the  order,  the  former  will  take  precedence  of  the  latter.'* 
And  this  raises  the  question  as  to  what  is  an  acceptance.  It 
is  sufficient  for  present  purposes  to  say  that  it  must  be  such  an 

1''  Tabor  v.  Van  Vranken,  39  Mich.  793.  To  render  the  assignment  effectual, 
notice  to  the  assignee,  as  well  as  to  the  debtor,  is  essential;  and  if  this  notice 
is  not  given  prior  to  garnishment,  the  assignee  cannot  claim  the  fund  after- 
wards.—Ridge  r.  Olmstead,  73  Mo.  578. 

11  Kane  v.  Clough,  3lJ  Mich.  436. 

12  Kane  ?>.  Clough,  36  Mich.  436. 

^3  Menken  v.  Gumbel,  57  Miss.  756. 
1*  De  Liquero  V.  Munson,  11  Heisk.  15. 


i55  THE  garnishee's  answer.  §  i'.Tl 

acknowledGfment  of  indebtedness  to  the  assignee  as  will  "-ive 
him  a  right  of  action  against  the  acceptor. ^'^  A  mere  acknowl- 
edgment that  the  amount  named  in  the  order  was  partly  due, 
and  would  all  be  due  at  a  certnin  time  in  the  future,  was  held 
not  to  amount  to  such  an  acceptance  as  would  bind  the  debtor 
to  the  assignee.^**  When  the  garnishee  is  notified  of  the  as- 
signment, in  order  for  him  to  answer  correctly  in  reference 
thereto,  it  is  not  essential  that  he  should  inquire  into  the  con- 
sideration. He  will  have  discharged  his  whole  duty  to  the 
parties  chiiming  the  fund  in  his  hands,  if  he  states  such  facts 
as  come  to  his  notice.  He  is  not  required  to  go  in  search  of 
information  which  concerns  others  more  than  himself.  Be- 
sides, it  is  held  that  the  assignment,  if  complete,  will  be  held 
valid  and  binding  upon  the  debtor,  whether  it  is  made  upon  a 
valuable  consideration  or  upon  no  consideration  whatever.^^ 

But  the  garnishee  cannot  rest  secure  on  his  answer,  if  sub- 
sequent thereto,  and  prior  to  judgment,  he  receives  notice  or 
information  of  a  transfer  of  the  debt  or  property,  provided 
there  is  still  time  to  amend  his  answer,  by  adding  the  statement 
that  the  claim  against  him  has  been  assigned  to  another,  and 
was  so  assigned  or  transfered  prior  to  service  of  the  garnishee 
summons. ^^  In  case  of  his  failure  to  make  such  amendment 
where  notice  of  the  assignment  was  received  after  answer,  it 
was  held  that  he  would  not  be  protected  against  the  double  lia- 
bility resulting  from  the  judgment  against  him  as  garnishee, 
and  the  claim  of  the  assignee.^' 

It  seems  that  there  are  situations  in  which  the  garnishee  may 
be  placed,  where  no  degree  of  candor  or  caution  which  he  may 
exercise  in  framing  his  answer  will  protect  him  against  double 
liability  for  the  same  debt.  Thus,  where  judgment  was  re- 
covered in  the  State  of  Pennsylvania,  and  assigned  in  good 

13  Dan'l  Negot  Inst.,  §  360. 

16  De  Liquero  v.  Mimson,  11  Heisk.  15. 

1'  Adams  v.  Eobinson,  1  Pick.  461. 

18  Tracy  v.  McGarty,  12  E.  I.  168.  The  notice,  to  be  effectual,  must  be  given 
prior  to  judgment  against  the  garnishee.     Newman  v.  Manning,  79  Ind.  218. 

I'J  Lewis  V.  Dunlap,  57  Miss.  130.  The  garnishee  is  bound,  in  any  event,  to 
disclose  the  true  ownership  of  property  in  his  liands,  when  it  is,  to  his  knowl- 
edge, not  the  property  of  the  defendant.  Otherwise,  he  renders  himself  liable 
to  the  owner,  notwithstanding  the  judgment  against  him  as  garnishee. — liim- 
ball  1).  McComber,  50  Mich.  862  ;  Casey  d.  Davis,  100  Mass.  124. 


§  371  THE  garnishee's  answer.  86 

faith  to  a  citizen  of  that  State,  and  subsequently  the  judgment 
creditor  was  sued  by  attachment  in  the  State  of  New  York, 
and  summons  of  garnishment  served  on  the  judgment  debtor, 
who  had  not  been  notified  of  such  assignment,  and  judgment 
obtained  against  the  garnishee,  who  paid  the  amount  of  the 
judgment  obtained  against  him  in  Pennsylvania  to  the  attach- 
ing creditor,  it  was  held  that  the  assignment,  being  valid  in 
Pennsylvania,  was  valid  everywhere  ;  that  after  assignment 
the  judgment  creditor  had  no  attachable  interest  in  the  judg- 
ment ;  and  that  therefore  the  judgment  of  the  New  York  Court, 
which  only  had  jurisdiction  by  means  of  the  attachment,  was 
void,  and  no  defense  to  an  action  by  the  assignee  against  tlie 
judgment  debtor .^^  Following  the  principle  upon  which  the 
New  York  judgment  was  held  void,  when  invoked  in  the  State 
of  Pennsylvania,  it  might  be  maintained  with  equal  justice, 
that  no  judgment  obtained  otherwise  than  upon  personal  ser- 
vice or  appearance  could  be  recognized  in  another  State,  as  af- 
fecting the  title  to  the  subject  of  seizure.  No  better  reason 
can  be  o-iven  for  recomizinof  the  rio-hts  thus  conferred  in  ref- 
erence  to  tangible  property,  than  for  giving  equal  weight  to 
the  attachment  of  a  credit  of  the  defendant.  The  law  was 
doubtless  properly  administered  in  the  State  of  New  York,  un- 
der the  statute  governing  the  case.  The  garnishee  could,  on 
answering  according  to  the  facts,  be  charged  and  compelled 
to  pay.  So  in  Pennsylvania,  the  law  was  doubtless  followed, 
and  so,  between  the  two  the  garnishee  must  suffer. 

In  order  to  render  an  assignment  effectual  to  pass  the  inter- 
est of  the  assignor  so  as  to  place  it  beyond  the  reach  of  his 
creditors,  the  question  of  first  importance  is  whether  such  as- 
signment was  made  in  good  faith.  It  is  more  important  that 
this  should  appear  by  the  answer,  than  that  there  has  been  a 
strict  compliance  with  the  statute  requiring  record  notice  to 
other  creditors  of  the  assignor.  It  was  accordingly  held,  where 
the  assignor  signed  the  assignment  of  her  wages  with  the  name 
of  "  Kavanah,"  though  her  real  name  was  Fitzgerald,  and  she 
worked  for  the  garnishee  under  the  name  of  "  Cavan,"  by 
which  she  was  generally  known,  and  this  confusion  of  names 

20  Noble  V.  Thompson  OU  Co.,  79  Pa.  St.  354  ;  21  Am.  E.66. 


87  THE  garnishee's  answer.  §  372 

prevented  the  record  of  the  assignment  from  giving  notice  as 
contemplated  by  statute,  tlie  honajides  of  the  transaction  would 
render  the  assignment  effectual  as  against  the  creditors  of  the 
assignor.^  ^ 

§  372.  Facts  not  to  be  placed  in  Issue  by  Denial. — There 
are  matters  of  defense  which  it  is  possible  for  the  garnishee 
to  interpose  against  a  judgment,  as  well  as  objections  that  may 
be  raised  to  the  regularity  of  the  preliminary  proceedings  by 
the  defendant,  which  the  garnishee's  denial  cannot  raise.  Thus, 
it  is  held  that  the  garnishee  cannot  in  his  own  defense  contra- 
dict the  affidavit  of  the  plaintiff  upon  which  the  attachment 
issued.  This  is  matter  of  abatement,  and  can  only  be  raised 
by  the  defendant;  while  the  defense  of  the  garnishee,  whether 
by  denial  or  otherwise,  must  be  in  bar.^  Where  the  garnish- 
ment is  in  aid  of  an  execution  on  a  judgment,  the  garnishee 
cannot  contradict  the  facts  adjudged.^  So  the  garnishee  may 
defend  against  the  proceeding,  upon  the  ground  that  a  judg- 
ment has  been  rendered  against  him  for  the  same  indebtedness ; 
but  this  may  not  be  reached  by  denial.^  There  are  numerous 
other  defenses  which  must  be  made  by  setting  forth  in  the  an- 
swer something  more  than  a  mere  denial  of  indebtedness,  or 
possession  of  defendant's  property.  To  bring  them  properly 
before  the  Court  for  adjudication,  ihey  should  be  made  by  af- 
firmative allegations,  in  much  the  same  manner  as  a  defendant 
would  answer  by  setting  up  matters  in  avoidance.*  Where, 
however,  an  attorney  in  fact  was  appointed,  with  authority  to 
collect  money  for  the  defendant,  and  declined  to  act,  but  ap- 
pointed another  in  his  stead,  it  was  held  that  the  original  at- 
torney, being  summoned  as  garnishee,  could  properly  return  that 
he  had  no  goods,  money,  etc.,  of  the  defendant  in  his  hands,  or 
under  his  control.^ 

21  O'Connor  v.  Cavan,  126  Mass.  117  ;  Ouimet  v.  Sirois,  124  Mass.  162.  Under 
a  statute  requTing  prior  a-signments  to  be  record'  d,  it  was  Leld  sufficient  for 
the  answer  to  state  that  the  assignment  Lad  been  "duly  recorded." — Hathe- 
way  V.  Reed,  127  Mass.  136. 

1  Cheatham  v.  Trotter,  Peck.  (Tenn.)  198. 

2Cushing  r.  Laird,  6  Benedict,  408. 

3  Houston  r.  Walcott,  7  la.  173. 

*  Infra,  §373,  et  seq. 

6Burrell  v.  Letson,  1  Strob.  (S.  C.)  239. 


§  373  TUE  garnishee's  answer.  88 

§  373.  Exemption  as  a  Defense. — It  is  difficult  to  say  when 
aiwl  to  what  extent  the  statutory  exemption  from  execution  of 
the  property  of  defendant,  held  by  garnishee,  may  be  urged  as 
a  defense,  and  when  It  should  figure  In  the  garnishee's  answer. 
Under  statutes  where  no  provision  Is  made  for  this  manner  of 
raising  the  question  of  exemption,  it  is  regarded  as  a  purely 
personal  privilege  of  the  defendant,  and  one  which  cannot 
avail  the  garnishee.^  At  all  events,  the  garnishee  cannot  set 
U[)  in  defense  to  the  garnishment  proceeding  the  exemption  of 
the  property  or  credit,  under  the  laws  of  another  State. ^  VV^hen, 
however,  the  duty  of  answering  as  to  facts  which  control  the 
question  of  exemption  is  imposed  upon  the  garnishee,  he  can- 
not com[)ly  by  a  denial  of  indebtedness,  or  escape  liability  for 
failure  to  state  such  facts,  merely  for  the  reason  that  the  inter- 
rogatories propounded  by  the  plaintiff  do  not  require  such 
statement  in  order  to  render  the  answers  responsive.  Having 
answered  that  a  certain  sum  is  due  for  wages,  under  a  statute 
exemi)ting  such  money  from  attachment,  it  is  the  duty  of  the 
garnishee  to  state  the  facts  with  sufficient  fullness  to  show 
whether  the  amount  still  owing  is  within  the  statutory  exemp- 
tion, as  well  as  all  other  facts  that  have  a  tendency  to  affect 
the  rights  of  the  parties.^  The  statute  is  one  affecting  the 
remedy  merely,  and  for  this  reason  can  be  set  up  only  in  the 
State  where  the  remedy  Is  sought  to  be  enforced,  and  there 
only  when  it  is  the  law  of  that  State.  It  is  immaterial  what 
the  exemption  law  of  the  State  in  which  the  contract  was  made 
embraces,  provided  it  is  not  the  law  of  the  State  where  the 
action  is  brought."*  Where,  as  in  Illinois,  the  employer  Is 
not  required  to  surrender  In  case  of  garnishment,  wages  due  an 
employee  within  certain  limits,  the  exemption  is  from  garnish- 
ment ;  and  it  Is  held  immaterial  whether  ihe  wages  in  respect 
to  which  the  employer  Is  garnished  are  due  to  a  resident  or 
a  non-resident  of  the  State.  In  either  case  he  Is  bound  to  an- 
swer, showing  that  the  money  which  he  admits  to  be  due  Is  ex- 
empt from  process  for  the  employee's   debts.^     This  answer 

1  Osborn  v.  Schutt,  G7  Mo.  712. 

2Leiber  v.  U.  P.  R.  Co.,  49  la.  88. 

SBrainard  v.  Shauuon,  (iO  Me.  342. 

4  Mineral  Point  R.  Co.  v.  Barron,  83  Til.  365. 

6 Mineral  Point  R.  Co.  v.  Barron,  83  111.  365^ 


89  THE  garnishee's  answer.  §  374 

should  be  as  to  the  facts  which  bring  the  amount  due  within 
the  limits  fixed  by  law,  or  which  exclude  the  same  or  any  part 
thereof  from  the  operation  of  the  statute.  These  facts,  being 
stated  fully,  it  will  be  for  the  Court  to  determine  whether  the 
employer  can  be  charged  as  garnishee  or  not.^ 

§  374.  Answer  as  to  the  Capacity  in  which  the  Garnishee 
holds  the  Property  of  Defendant. — The  mere  fact  that  the  gar- 
nishee is  in  possession  of  funds  or  property  in  which  defendant 
has  a  beneficial  interest,  will  not  in  every  instance  serve  to 
charge  the  garnishee,  though  such  property  or  funds  are  not 
exempt  by  statute  from  execution  or  attachment.  Other  con- 
siderations may  arise  to  prevent  their  being  so  applied  without 
the  consent  of  parties  who  are  strangers  to  the  action  or  pro- 
ceeding. In  answering,  the  garnishee  cannot  with  safety  omit 
to  state  every  fact  coming  to  his  knowledge,  which  may  be  re- 
lied upon  by  any  one  adversely  interested  in  the  fund  or  prop- 
erty, to  show  an  assignment  of  the  same  or  any  interest  there- 
in.^ And  where  a  bailee  or  other  depositary  holds  money  or  other 
property  charged  with  a  secret  trust,  his  concealment  or  failure 
to  disclose  such  trust  in  case  of  garnishment,  would  not  only  ren- 
der him  liable  to  judgment  in  favor  of  the  attaching  creditor, 
but  such  judgment  would  be  no  protection  to  him  in  an  action 
by  the  party  who  suffered  loss  in  consequence  of  his  conceal- 
ment,^ Thus,  in  Hardy  vs.  Hunt,  where  money  had  been  en- 
trusted to  a  bailee,  by  whom  it  was  placed  in  the  hands  of  the 
party  subsequently  summoned  as  garnishee  of  such  bailee,  it 
was  held,  though  the  bailee  had  been  permitted  to  use  such 
money  in  his  own  name,  the  bailor  was  not  estopped  from 
claiming  it  as  against  a  creditor  who  had  not  been  misled  by 
the  acts  or  declarations  of  such  bailor  ;  and  the  garnishee  be- 
ing informed  of  his  rights,  was  bound  to  protect  the  same  by 
resisting  garnishment  in  a  proceeding  to  which  the  bailor 
was  not  a  party. ^  The  first  and  easiest  step  in  the  way  of 
such  resistance  would  be  by  answering  fully  as  to  the  facts  of 
which  the  garnishee  had  received  information.     It  is  a  wise 

oCliilcote  V.  Conley,  3G  Ohio  St.  545. 

J  Supra,  §  371. 

2  Hardy  r.  Hunt,  11  Cal.  343.    See  Brigden  v.  Gill,  Ifi  Mass.  522. 

8  Hardy  v.  Hunt,  11  Cal.  3i3. 


§  375  THE  garnishee's  answer.  90 

provision  of  the  statute,  where  made,  that  the  garnishee  may 
cast  the  burden  of  contesting  the  rights  of  claimants  to  at- 
tached property  or  funds  upon  the  claimant  himself,  by  simply 
disclosing  in  his  answer  the  existence  of  such  claim.*  But 
whether  such  provision  be  made  by  statute  or  not,  it  is  quite  clear 
that  the  garnishee  cannot  safely  conceal  or  ignore  such  facts 
in  his  answer.  He  will  not  be  protected  from  the  effects  of  his 
negligence,  any  more  than  from  the  consequences  of  willful 
perversion  or  concealment.^  And  in  no  respect  is  greater  full- 
ness and  particularity  of  statement  required,  than  when  the 
fund  in  the  hands  of  the  garnishee  is  subject  to  a  trust.  Ac- 
cordingly, where  the  garnishee  gave  a  note  secured  by  deed  of 
trust  to  the  defendant  in  the  action,  as  guardian  of  a  minor, 
and  knew  at  the  time  he  was  summoned  that  it  was  in  this  ca- 
pacity that  the  defendant  became  his  creditor,  it  was  his  duty 
to  take  advantage  of  this  by  his  answer,  and  by  bringing  in  the 
guardian,  or  his  ward  if  of  age,  to  contest  the  claim.  And 
where  the  ffarnishee,  through  his  neglifjence  in  observinsf  his 
duties  in  this  respect,  suffered  judgment  to  go  against  himself, 
it  was  held  that  he  could  not  enjoin  the  enforcement  of  the 
trust  deed,  even  though  he  was  also  forced  as  garnishee  to  pay 
the  judgment.^  But  where  the  trust  is  illegal,  it  is  held  that  to 
set  it  up  in  the  answer  will  be  nugatory.  Thus,  where  the  de- 
fendant had,  contrary  to  law,  deposited  money  which  came  to 
his  hands  as  county  treasurer,  in  a  bank,  and  tlie  bank  was 
summoned  as  garnishee  in  an  action  against  the  depositor,  it 
was  held  that  neither  the  bank  as  garnishee,  nor  the  defend- 
ant, would  be  heard  to  object  to  a  judgment  against  the  former, 
on  account  of  the  capacity  in  which  the  defendant  made  the  de- 
posit, though  the  action  was  against  defendant  for  his  personal 
indebtedness.'* 

§  375.  Garnishee's  Interest  in  the  Fund  or  Property  at- 
tached.— The  garnishee's  answer  may  not  only  set  up  claims 
in  favor  of  strangers,  but  with  equal  propriety  can  interpose  by 
way  of  set-off,  such  claims  as  he  may  have  to  the  property  or 

4  Ex  Parte  Opdyke,  62  Ala.  68. 

5  De  Blanc  v.  Webb,  5  La.  82  ;  Houston  v.  Walcott,  7  la.  173. 

6  Horton  v.  Grant,  56  Miss.  404. 

7  First  Nat'l  Bank,  etc.  v.  Gandy,  11  Neb.  431. 


91  THE   garnishee's    ANSWER.  §   375 

fund  souglit  to  be  reached,  and  tliis  right  is  held  to  be  dependent 
entirely  upon  his  answer  when  its  statements  are  not  disproved.^ 
Thus,  where  the  answer  stated  that  the  garnishee  had  a  certain 
amount  of  property  in  his  possession,  which  would  belong  to 
defendant,  when  he  paid  the  sum  of  $468  to  the  garnishee,  it 
was  held  that  so  long  as  this  answer  was  not  disproved,  it  would 
entitle  the  garnishee  to  retain  the  amount  therein  stated  as  due 
him  from  defendant.^  When  a  garnishee  charges  himself  with 
a  sum  of  money,  which  is  the  property  of  defendant,  against 
which  he  claims  a  set-ofF,  it  is  incumbent  on  him  to  state  the 
facts  of  his  claim  fully,  so  that  the  Court  may  be  able  to  judge 
of  its  merits ;  and  when  such  claim  seems  to  be  merely  colora- 
ble, as  where  an  attorney  holds  the  property  of  defendant  as 
security  for  future  professional  services  for  an  indefinite  time, 
such  claim  will  not  be  allowed.^  The  set-off  claim  must  be  one 
which  the  garnishee  could  have  claimed  from  the  defendant  in 
a  direct  suit  for  that  purpose,  or  could  have  set  up  in  an  action 
against  himself  by  the  attachment  defendant.^  Where  an  In- 
surance Company  was  summoned  as  garnishee,  in  an  action 
against  a  policy  holder,  it  was  held  that  premiums  due  on  pol- 
icies previously  assigned  with  consent  of  insurer,  could  not  be 
set  off  against  a  claim  for  loss  on  a  policy  not  assigned.^  So 
the  garnishee  cannot  set  off  a  note  given  the  defendant  for  col- 
lection, for  the  reason  that,  until  it  has  been  paid,  he  may  with- 
draw it  at  any  time.''  When  it  is  once  admitted  by  the  gar- 
nishee that  he  is  in  possession  of  any  of  the  property  rights, 
effects,  or  credits  of  defendant,  to  discharge  himself  from  liabil- 
ity, it  must  clearly  appear  from  his  answers  that  he  has  just 
claims  against  defendant,  to  an  equal  amount ;  and  to  establish 
this  fact,  doubtful  statements  will  not  suffice."  So  it  Is  held 
that  where  one  incurs  contingent  liability  as  surety,  that  he 
cannot  offset  it  against  a  deposit  made  by  the  defendant,  un- 
less such  deposit  was  made  expressly  for  the  purpose  of  guaran- 

lArledge  v.  White,  1  Head,  24  ;  Thomas  v.  Hopper,  5  Ala.  442. 
2Blanchard  v.  Vargas,  18  La.  486  ;  Rankin  v.  Simonds,  27  111.  352^ 
8 Grain  v.  Gould,  4G  III.  293. 
4 Field  V.  Watkins,  5  Ark.  G72. 
6  Cleveland  v.  Clap,  5  Mass.  201 

6  Rankin  v.  Simonds,  27  111.  352. 

7  Lamb  v.  Franklin  Mf 'g  Co.,  18  Me.  187. 


§    375  THE   GARNISHEE'S    ANSWER.  92 

teeing  the  surety  against  such  liability.^  The  rights  and  rem- 
edies between  defendant  and  the  garnishee  are  not  intended 
to  be  either  extended  or  abridged  by  the  process  ;  hence  where 
the  garnishee,  summoned  in  consequence  of  the  possession  of 
defendant's  chattels,  undertook  to  set  o£f  against  his  liability 
as  depositary  a  debt  due  from  defendant,  it  was  held  that  such 
set-off  could  not  be  allowed,  where  the  garnishee  could  not 
have  retained  possession  of  such  chattels  as  security  for  his 
debt.^  But  where  the  claim  of  set-off  is  a  debt  due  the  gar- 
nishee  from  the  defendant,  and  that  from  the  defendant  to  gar- 
nishee is  equal  in  amount  to,  or  larger  than,  that  due  defendant, 
the  garnishee  will  be  discharged.^*'  And  where  the  garnishee 
admitted  that  at  the  time  of  service  he  had  in  his  hands  a  cer- 
tain sum  due  defendant,  which,  by  special  contract  between 
garnishee  and  defendant,  was  to  be  appropriated  to  the  pay- 
ment of  a  debt  due  from  defendant  to  another  ;  and  that  subse- 
quently defendant  paid  this  debt  in  money,  it  was  held,  on 
what  seems  a  very  close  adherence  to  the  technical  importance 
of  service  in  fixing  the  status  of  the  parties,  that  the  garnishee 
was  not  chargeable,  for  the  reason  that  when  the  writ  was 
served  nothing  was  due  from  the  party  served,  and  it  was  im- 
material that,  by  the  subsequent  payment  of  defendant's  debt, 
the  ccarnlshee  became  indebted  to  him.^^  So  the  o-arnishee  will 
not  be  prevented  from  maintaining  his  set-off,  merely  because 
he  was  the  son  of  the  defendant,  where  the  money  advanced 
by  the  son  was  made  on  a  promise  of  repayment.^^ 

In  setting  up  a  collateral  obligation  of  the  garnishee,  as- 
sumed in  behalf  of  the  defendant  whose  property  he  holds,  or 
to  whom  he  is  indebted,  the  matter  of  principal  importance 
seems  to  be  that  the  right  to  hold  the  property  or  money  a3 
indemnity  should  clearly  appear.  If  from  the  answer  it  ap- 
pears that  the  liability  assumed  by  the  garnishee  is  to  answer 
to  a  stranger  for  the  debt  or  default  of  the  defendant,  and  such 

8  McDowell  V.  Crook,  10  La.  An.  31. 

9 Michigan  etc.  R.  Co.  v.  Chicago  etc.  R.  Co.,  1  111.  App.  399. 

10  Arledge  v.  White,  1  Head,  241 ;  Fay  v.  Eeager,  2  Sneed  (Tenn.),  200;  John- 
son V.  Hoyle,  3  Head,  5G  ;  Fain  v.  Jones,  Id.  308  ;  May,  etc.  v.  Potomac  Insur- 
ance Co.,  2  Baxt.  (Tenn.)  296. 

11  O'Brien  v.  Collins,  124  Mass.  98 

12  Sampson  v.  Hyde,  10  N".  H.  492. 


93  THE  garnishee's  answer.  §  376 

undertaking  was  not  reduced  to  writing,  it  would  nevertheless 
be  sufficient  to  entitle  the  garnishee  to  a  discharge,  if  his  answer 
is  not  disproved.  True,  the  contract  by  which  the  obligation  is 
created  is  voidable  under  the  statute  of  frauds;  but  this  is  only 
when  the  statute  is  pleaded  by  him  in  defense  of  an  action  on 
such  contract.  If  he  sees  proper  to  acknowledge  his  liability  un- 
der such  a  promise,  there  is  no  principle  of  law  or  equity  that 
empowers  any  one  else  to  force  him  to  take  advantage  of  the 
statutory  privilege.  This  jjroposition  is  elsewhere  discussed 
and  supported  by  authorit)-.^^  Where  the  answer  discloses 
money  of  defendant  in  the  hands  of  the  garnishee,  upon  which 
the  latter  has  a  lien,  it  is  held  that  judgment  cannot  be  ren- 
dered against  such  garnishee,  without  first  affording  him  an 
opportunity  to  pay  the  money  into  Court,  provision  being  made 
at  the  time  for  the  payment  of  his  claim. ^*  In  Vermont,  where 
the  right  of  the  garnishee  to  retain  the  amount  of  his  demand 
against  defendant  is  secured  by  express  provision  of  the  stat- 
ute, and  the  statute  places  no  limitation  on  the  demands  which 
he  may  set  off  in  this  manner,  it  is  held  that  he  might  retain 
a  sum  to  be  paid  on  defendant's  promissory  note,  which  was 
not  yet  due,  sufficient  in  amount  to  pay  his  own  note  to  defend- 
ant, which  was  due  when  served  with  process.^^ 

§  376.  Privileged  Communications. — Where  an  attorney  is 
garnished,  there  is  no  doubt  but  that  he  may  be  excused  from 
answering  any  particular  interrogatory,  if  he  declare  on  oath 
that  he  cannot  answer  the  same  without  disclosing  matters  con- 
fided to  him  in  his  professional  capacity,  or  advice  given  to 
his  client  concerning  business  about  which  he  is  retained. 
But  this  must  be  taken  as  subject  in  no  small  degree  to  the 
judgment  of  the  Court  respecting  what  is  entitled,  from  its  na- 
ture, to  be  considered  as  coming  within  the  privilege.  It  is 
not  intended  to  so  construe  this  feature  of  the  law  as  to  shield 
property  in  the  hands  of  an  attorney  from  the  pursuit  of  cred- 
itors of  the  owner,  even  though  he  be  the  client  of  the  party 
who  holds  the  property.^     Disclosure  of  the  time  of  receiving 

"Pose,  §. "as. 

"  Hawthorn  v.  Unthank,  52  la.  507. 
iSLynde  v.  Watson,  52  Vt.  G48. 
1  White  V.  Boyd,  20  La.  An.  188;  Shaugnessy  v.  Fogg,  15  La,  An.  330. 


§  876  THE  garnishee's  answer.  94 

and  paying  over  money,  and  to  whom  paid,  by  an  attorney 
who  has  received  the  same  on  behalf  of  his  client,  cannot 
under  ordinary  circumstances  be  objected  to  as  disclosing  pro- 
fessional secrets  ;  and  a  refusal  to  answer  such  interrogatory 
was  held  an  evasion,  making  the  attorney  so  refusing,  when 
garnished,  liable  for  the  whole  debt,  costs  and  damages.^  The 
attorney  may  be  asked,  through  whose  agency,  or  in  what  man- 
ner and  at  what  time  he  was  retained,  who  was  his  client, 
where  the  relationship  commenced  and  ended :  and  if  noth- 
ing appears  to  warrant  the  inference  that  there  would  be  a 
violation  of  professional  confidence  in  answering,  what  money 
had  been  received,  and  what  paid  out  and  to  whom  paid.' 
And  where  the  attorney  had  in  his  possession,  as  disclosed  by 
his  answers,  certain  promissory  notes,  owned  in  part  by  the 
defendant,  after  notice  of  garnishment,  he  could  do  no  act  to 
the  prejudice  of  the  rights  of  the  attaching  creditors,  without 
rendering  himself  liable.*  It  was  also  held  that  an  attorney 
who  had  received  certain  money  to  hold  until  the  question  of 
its  ownership  was  determined  between  the  parties,  could  not, 
when  garnished,  refuse  to  state  where  it  was  deposited,  on  the 
ground  that  his  knowledge  of  the  matter  was  privileged.^  It 
is  difficult  without  entering  upon  the  subject  of  attorneys  at 
greater  length  than  the  importance  of  the  subject  seems  to 
warrant,  to  draw  the  line  with  precision  between  matters 
which  are  privileged  and  those  which  are  not.  Where,  how- 
ever, the  question  Is  one,  the  answer  to  which  may  involve  a 
breach  of  professional  confidence,  the  attorney  should  be  ex- 
cused, on  his  claiming  the  privilege,  or  its  being  claimed  in  be- 
half of  his  client,  if  the  attorney  testifies  that  to  answer  would 
be  to  disclose  professional  secrets.  But  when  the  nature  of 
the  question  Is  such  that  no  such  result  could  follow,  it  would 
be  held  otherwise.  A  party  may  be  required  to  answer 
questions  tending  to  show  that  he  was  a  party  to  a  fraud- 
ulent assignment.^ 

2  Comstock  V.  Paine,  18  La.  479. 

8  Shauglinessy  v.  Fogg,  15  La.  An.  330. 

<  White  V.  Boyd,  20  La.  An.  188. 

6  Williams  v.  Young,  46  la.  140. 

6  Oberteuffer  v.  Harwood,  2  McCrary  C.  C.  415. 


95  THE  garnishee's  answer.  §  37T 

§  377.  Doubtful  and  Uncertain  Answers  Construed  against 
Garnishee. — In  disclosures,  whether  in  answer  to  interrogato- 
ries or  under  scire  facias,  all  doubtful  and  uncertain  statements 
are  generally  construed  most  strongly  against  the  garnishee, 
when  he  has  it  in  his  power  to  make  them  positive.^  Thus, 
where  the  garnishee  answered  that  the  principal  defendant  was 
"  nearly  paid  up,"  it  was  held  that  he  should  have  stated  how 
nearly,  and  why  any  portion  unpaid  to  defendant  should  be 
carried  over  as  due  for  personal  wages.^  So  where  the  gar- 
nishee charges  himself  with  a  sum  of  money,  against  which  he 
claims  a  set-off  for  services,  he  must  give  the  particulars  of 
his  employment,  or  so  state  the  facts  that  the  Court  may  be 
able  to  form  an  opinion  of  the  amount ;  otherwise,  the  answer 
will  be  condemned  as  evasive,^  So  also,  where  the  garnishee 
answered  that  defendant  sold  and  delivered  to  him  furniture 
and  provisions  to  secure  the  payment  of  a  debt,  the  articles 
being  left  in  the  debtor's  possession  ;  that  the  furniture  was 
not  alone  sufficient  to  pay  the  debt,  but  the  whole  jjroperty 
was  more  than  sufficient;  and  that  "most"  of  the  provisions 
had  been  consumed  by  the  debtor :  it  was  held  that  the  answer 
was  so  doubtful  and  uncertain,  in  failing  to  state  the  amount 
of  the  provisions  consumed  at  the  date  of  service,  that  the  gar- 
nishee was  chargable.*  Where  the  answers  are  not  explicit  or 
responsive  to  interrogatories,  on  a  failure  to  make  proper  an- 
iwers  thereto,  the  interrogatories  have  been  taken  pro  confesso, 
and  the  garnishee  held  liable  as  though  he  had  admitted  the 
indebtedness.^  And  where  the  garnishee  declared  to  plain- 
tiffs before  he  was  served,  that  he  had  in  his  hands  sufKcient 
to  pay  their  demand,  and  afterwards  put  in  an  equivocal  and 
evasive  answer,  he  was  held  to  pay  the  whole  demand.^  So 
where  the  garnishee  answered  that  he  had  in  his  hands  certain 
funds  of  defendant,  and  that  he  had  paid  a  certain  portion 
thereof  to  the  assignee  for  the  benefit  of  creditors,  and  thought 
that  this  sum  had  not  been  repaid  by  defendant,  he  was  held 

1  Ormsby  v.  Davis,  5.  R.  I.  442;  Kelly  v.  Bowman,  12  Pick.  383. 

2  Brainard  v.  Shannon,  60  Me.  342. 
8  Grain  v.  Gould,  46  111.  293. 

*  Graves  v.  Walker,  21  Pick.  160. 

8  Hart  V.  Dahlgreeu,  16  La.  559. 

6  Keel  V.  Ogden,  5  Monroe  (Ky.)  362;  Scales  v.  Swan,  9  Port.  (Ala.)  163. 


§  377  THE  garnishee's  answer.  96 

chargable  for  sucli  sum,  as  the  burden  was  on  him  to  show 
that  it  had  not  been  repaid,  if  such  were  the  fact."  So  also, 
where  the  garnishee  was  interrogated  as  to  the  time  when  a  note, 
which  had  been  in  the  garnishee's  possession,  was  delivered  to 
a  third  person,  and  the  fact  was  important  to  plaintiff,  for  the 
reason  that  if  the  note  was  in  the  possession  of  the  garnishee  at 
the  time  of  service  of  the  interrogatory  on  him,  it  would  be 
subject  to  plaintiff's  seizure,  and  failure  to  state  in  the  answer 
the  date  of  delivery  was  considered  as  a  confession  that  he 
had  the  note  in  his  possession  when  process  was  served  on  hlm.^ 
Where  the  disclosures  in  the  answer  show  that  at  one  time 
prior  to  service  the  garnishee  had  in  his  possession  a  fund  that 
belonged  to  the  principal  defendant,  which  would  have  been 
attachable  in  the  suit,  the  burden  of  showing  that  prior  to  ser- 
vice of  process  in  garnishment  he  had  expended  the  fund  for 
the  benefit  of  defendant  was  cast  upon  the  garnishee,  and  this 
could  not  be  made  to  appear  by  sweeping  statements,  with  an 
omission  of  details  and  particulars.^ 

In  California,  under  a  statute  that  provides  for  a  direct  ac- 
tion against  the  garnishee  in  case  of  his  denial  of  indebtedness, 
it  was  held  that  where  the  answers  are  evasive,  and  the  denial 
in  bad  faith,  it  may  be  disregarded  as  fraudulent,  and  the  gar- 
nishee adjudged  to  pay  over  the  fund  in  his  hands,  in  satisfac- 
tion of  plaintiff's  judgment. ^*^ 

But  tiiough  it  is  generally  true  that  equivocal  or  doubtful 
statements  are  to  be  construed  most  strongly  against  the  party 
answering,  yet  they  are  not  to  receive  a  construction  against 
the  fair  and  natural  import  of  the  language  of  the  answers 
taken  all  together. ^^  In  Michigan,  at  least  where  the  action  is 
before  a  justice  of  the  peace,  the  rule  as  to  the  consequences  of 
ambiguity  and  uncertainty  in  the  answers  of  the  garnishee  is 
inverted.  There  it  is  held,  that  as  the  garnishee  is  a  witness 
for  plaintiff,  upon  whom  rests  the  burden  of  proof,  if  the  an- 
swer is  too  ambiguous  and  uncertain  to  show  whether  any  in- 
debtedness exists,  and  if  so,  to  whom,  the  disclosure  will  not 

7  Scott  V.  Ray,  18  Pick.  3G0. 

8  Vason  V.  Clarke,  4.  La.  An.  581. 
8  Barker  v.  Osborne,  71  Me.  69. 

»  Parker  v.  Page,  38  Cal.  522. 
"  Kelly  V.  Bowman,  12  Pick.  383. 


97  THE  garnishee's  answer.  §  378 

sustain  the  judgment  in  a  justice's  Court.^^  In  any  case,  tlie 
solution  of  doubts  as  to  garnishee's  indeblcxlness  would  not  be 
found  against  him,  where  such  doubts  did  not  arise  from  his 
equivocal  manner  of  answering  relevant  questions.  The  gar- 
nishee's liability  is  not  to  be  presumed,  but  is  arrived  at  by  di- 
rect admissions,  and  conclusions  following  necessarily  there- 
from. ^^  Where  the  answer  is  responsive,  and  it  is  still  doubt- 
ful whether  the  garnishee  owes  the  defendant,  the  question  will 
generally  be  solved  in  garnishee's  favor. ^* 

The  doctrine  that  the  garnishee  is  to  be  charged,  where  his 
answer  leaves  it  doubtful  whether  lie  has  in  his  possession  any 
of  defendant's  property,  or  is  indebted  to  defendant,  can  only 
belaid  down  as  a  general  rule,  where  from  some  portion  of 
the  answer  it  appears  that  he  was  at  one  time  so  indebted,  or 
had  possession  of  defendant's  attachable  property.  The  an- 
swer should  make  some  sort  of  a,  2')rima  facie  case  against  him, 
and  the  doubts  that  arise  should  go  to  the  question  whether 
he  has  clearly  and  unequivocally  stated  sufficient  to  overcome 
the  inference  that  he  still  held  the  property,  or  was  indebted 
when  served. ^°  Thus,  where  the  statute  would  protect  a  gar- 
nishee who  accepted  a  negotiable  bill  of  exchange,  and  in  his 
answer  he  admitted  having  accepted  a  draft,  which  he  stated 
he  thought  was  negotiable,  he  was  held  chargable,  for  the 
reason  that  he  should  have  stated  the  controlling  factpositively.^^ 

§  378.  Exceptional  Cases  where  Disclosure  need  not  be  Cer- 
tain and  Explicit. — There  are  cases  in  which  the  certain  and 
explicit  answer  generally  required  is  beyond  the  power  of  the 
garnishee  to  make.     When  the  circumstances  are  such  that  the 

12  Spears  v.  Chapman,  43  Mich.  541. 

13  Mosea  v.  McMullen,  4  Cold.  245;  Northam  v.  Cartwright,  10  E.  I.  20;  Lane 
V.  Felt,  7  Gray,  491. 

"  JIayor  etc.  v.  Potomac  Ins.  Co.,  2  Baxt.  (Tenn.)  296  :  Post,  §  397.  See  Car- 
dany  v.  N.  E.  Furniture  Co.,  107  Mass.  116;  Richards  w.  Stephenson,  99  Mass. 
311;  White  v.  Sprngfield  Inst.,  134  Mass.  232;  Driscoll  v.  Hoyt,  11  Gray,  404; 
Plummer  v  Rundlett,  42  Me.  365. 

1^  Shearer  v.  Handy,  22  Pick.  417;  Sebor  v.  Armstrong,  4  Mass.  206;  Rich  v. 
Reed,  22  Me.  28;  Foster  v.  Libby,  24  Me.  448;  Butman  v.  Hobbs,  35  Me.  232. 

18  Sebor  v-  Armstrong,  4  Mass.  200;  Cleveland  v.  Clap,  5  Mass.  205;  Kelly  v. 
Bowman,  12  Pick.  386;  Ormsbee  v.  Davis,  5  R.  I.  445;  Fogg  v.  Worster,  49  N. 
II.  503;  Peaslee  v.  Doane,  39  N.  H.  494;  Lamb  v.  Franklin  Man.  Co.,  18  Me. 
187;  Brainard  r.  Shannon,  6  Me.  342;  Barker  v.  Osborne,  71  Me.  G9. 
II.  Attach.— 7. 


§  379  THE  garnishee's  answer.  98 

matters  concerning  which  lie  is  interrogated  are  probably  not 
within  his  knowledge,  he  will  be  excused  from  answering  pos- 
itively. Thus,  where  he  had  given  defendant  a  promissory 
note  on  the  day  he  was  served  with  process,  and  subsequently 
died  without  making  answer,  and  his  administrator  disclosed 
that  the  note  was  given,  to  the  best  of  his  knowledge,  prior  to 
the  service  of  process,  it  was  held  that  although  such  an  an- 
swer might  not  have  been  satisfactory  if  intestate  had  remained 
alive,  yet  being  made  by  the  administrator,  it  was  sufficient  as 
the  best  evidence  under  the  circumstances.-^  So  where  the 
matters  upon  which  the  garnishee  is  interrogated  are  irrelevant 
to  the  issues,  he  is  not  requiretl  to  answer ;  as  where,  under  a 
statute  limiting  the  inquiry  to  transactions  prior  to  service  of 
process,  and  the  questions  propounded  had  reference  to  what 
had  taken  place  subsequent  to  service,  the  garnishee  answer- 
ing that  such  subsequent  matters  were  in  no  way  connected 
with  his  transactions  with  defendant  prior  to  the  service  of  the 
writ,  he  was  excused  from  answering  further  as  to  such  mat- 
ters.^ So  it  is  held  in  Louisiana,  that  simulated  or  fraudulent 
titles  cannot  be  attacked  by  process  of  garnishment,  and  inter- 
rogatories tending  to  this  end  are  not  pertinent  to  the  issues, 
and  need  not  be  answered.^  And  for  the  purpose  of  ascertain- 
ing whether,  in  the  opinion  of  the  Court,  the  interrogatories 
are  such  as  he  is  required  to  answer,  he  may  object  to  them, 
and  submit  the  question  of  their  pertinency,  without  losing  his 
right  to  answer  in  case  his  objection  proves  unavailing.  It  is 
not  incumbent  upon  the  garnishee  to  answer  every  conceivable 
question  that  may  be  propounded,  at  the  risk  of  being  held 
chargable  in  case  he  errs  in  his  first  impressions  as  to  the 
propriety  of  the  interrogatory  objected  to.* 

§  379.    The  Statute  of  Limitations. — As  a  general  rule,  the 
statute  of  limitations,  to  be  an  effectual  bar  to  judgment  against 

1  Ormsby  v.  Anson,  21  Me.  23. 

2Humplirey  v.  Warren,  45  Me.  216  ;  Lyman  r.  Parker,  33  Me.  31 ;  Rhine  v. 
Danville  etc.  R.  Co.,  10  Phila.  336  ;  Crossman  v.  Grossman,  21  Pick.  21;  Cal- 
lender  v.  Furbish,  46  Me.  226. 

s  Kearney  v.  Nixon,  19  La.  An.  16.  But  see  Oberteuffer  v.  Harwood,  2  Mc- 
Crary  C.  C.  415. 

4  Sawyer  v.  Webb,  5  la.  315. 


99  THE  garnishee's  answer.  §  380 

the  garnishee,  must  be  pleaded  with  the  same  certainty  and 
definiteness  as  other  facts  are  required  to  be  stated.  It  should 
be  so  alleged  that  there  can  be  no  doubt  of  its  intended  appli- 
cation to  every  demand  the  defendant  may  have  against  the 
garnishee,  and  the  facts,  rather  than  conclusions  of  law,  should 
be  averred.  Nevertheless,  where  the  garnishee  answered  that 
every  claim  which  defendant  might  have  against  him  was 
barred  by  the  statute  of  limitations,  it  was  held  that,  although 
defendant  might  still  have  claims  upon  which  the  garnishee 
might  be  charged  consistently  with  the  truth  of  his  answer, 
yet  in  the  absence  of  interrogatories  in  relation  to  such  claims, 
he  had  set  forth  facts  sufficient  to  entitle  him  to  the  benefit  of 
the  statutory  bar,  and  on  the  answer  being  undisputed,  should 
be  discharged.^  Where  the  statute  is  properly  pleaded  in  any 
case,  it  will  entitle  the  garnishee  to  a  discharge ;  but  the  bar 
so  set  up  must  be  one  which  would  be  equally  effectual  against 
the  defendant.^  But  the  fact  that  such  a  defense  had  been  in- 
terposed by  the  garnishee  would  not,  as  it  seems,  prevent  a 
recovery  by  the  defendant,  in  an  action  subsequently  brought, 
where  the  statute  was  not  pleaded,  or  where  its  effect  was 
overcome  by  a  promise  made  subsequent  to  the  discharge  of 
garnishee.^ 

§  380.  Extent  to  wMch  the  Answer  is  taken  as  True. — Un- 
der exceptional  statutory  provisions,  the  answer  of  the  gar- 
nishee, when  the  amount  exceeds  fifty  dollars,  is  held  conclu- 
sive.^ Under  such  statutes,  the  answer  amounts  to  absolute 
verity,  aijd  leaves  nothing  for  either  party  to  allege  or  prove,  ex- 
cept such  facts  as  are  not  stated  or  not  denied  by  the  garnishee.^ 
As  a  general  rule,  however,  the  answer  is  only  taken  as  true 

1  Grossman  v.  Grossman,  21  Pick.  21. 

2  Hazen  v.  Emerson,  9  Pick.  144. 

3  Where,  by  the  terms  of  a  policy  of  insurance,  it  could  not  be  sued  after 
twelve  months  from  the  date  of  loss,  it  was  decided  that  garnishment  of  the 
Gompaiiy  within  that  period,  in  attachment  against  the  assured,  would  save 
the  claim  from  being  barred,  when  the  scire  faeias  was  brought  after  twelve 
months  had  expired. — Harris  v.  PhcEnix  Ins.  Go.,  35  Gonn.  310. 

1  Moore  v.  Green,  4  Humph.  299  ;  Doaue  v.  McGavoch,  7  Humph.  132  ;  Mo- 
ses t'.  McMullen,  4  Gold.  242;  Foster  v.  Saffell,  1  Swan.  90;  Gonner  u.  Allen, 
3  Head,  4 18. 

2  Gouch  V.  Tolman,  10  Gush.  104 ;  U.  S.  v.  Langton,  5  Mason  C.  C.  280.  See 
Clinton  Nat'I  Bank  v.  Bright,  126  Mass.  535. 


§  380  THE  garnishee's  axswer.  100 

wlien  not  controverted.^  To  this  extent,  it  will  be  held  true  not 
only  in  its  statements,but  documents  attached  will  be  regarded  as 
genuine  until  the  contrary  is  shown.^  But  when  the  garnishee 
in  his  answer  sets  up  rights,  or  undertakes  to  draw  conclusions 
from  the  facts  stated,  such  conclusions  can  only  be  taken  sub- 
ject to  revision  by  the  Court. ^  When  judgment  is  sought  up- 
on the  answer,  assuming  it  to  be  true,  it  must  clearly  appear 
from  the  original,  and  all  supplemental  and  additional  answers 
taken  together,  that  the  garnishee  is  chargable.^  In  New 
York,  the  party  summoned  as  garnishee  is  required  to  furnish 
a  "  certificate,"  which  is  in  substance  an  answer  to  the  gar- 
nishment ;  and  where  this  certificate  is  uncontradicted,  it  ends 
the  proceeding.'^  In  a  case  of  refusal  to  furnish  the  statutory 
certificate,  it  was  held  that  the  Court  might  order  an  examina- 
tion, in  which  the  garnishee  cOuld  be  asked  to  state  the  char- 
acter in  which  he  held  the  money  sought  to  be  reached  by  the 
process,  the  manner  in  which  it  was  obtained,  and  the  object 
of  gathering  it  together ;  but  the  examination  could  go  no 
farther  than  this.^  In  general,  whatever  be  the  nature  of  the 
answer,  if  unsatisfactory,  It  may  be  contradicted  in  that  pro- 
ceeding, and  the  disputed  questions  of  fact  brought  to  an  issue 
before  a  jury.  But  even  where  this  mode  of  procedure  is  not 
adopted,  another  method  of  controverting  the  answer  is  pro- 
vided ;  as  by  an  action  against  the  garnishee,  differing  In  no 
essential  particular  from  other  civil  actions.  So  far  from  the 
answer  being  regarded  as  conclusive,  even  where  this  latter 
method  of  controverting  is  provided,  it  leaves  the  proceeding 
by  garnishment,  and  all  rights  acquired  under  it,  in  suspense, 
to  await  the  determination  of  the  action  brought  to  try  the 
truth  of  the  answer.^    The  fact  that  the  answer  is  true,  is  not 

3  Meeker  v.  Sanders,  6  la.  Gl;  xMcEvoy  v.  Lane,  9  Mo.  47;  Mason  v.  McCamp- 
■bell,  2  Ark.  506;  Oakey  v.  Mississippi  etc.  R.  Co.,  13  La.  567;  Rankin  v.  Si- 
monds,  27  111.  352;  Lascliear  r.  White,  88  111.  43;  Kelley  v.  Weymouth,  68  Me. 
197;  Pease  v.  Underwriters'  Union,  1  111.  App.  287;  Cairo  &c.  R.  Co.  v.  Killen- 
berg,  82  111.  295;  Baxter  v.  M.  K.  &.  T.  R.  Co.,  67  Barb.  383;  Plummer  v.  Rund- 
let,  42  Me.  .365;  Truitt  v.  Griffin,  61  111.  26. 

4  Robinson  v.  Rapelye,  2  Stew.  86. 

s  Lamb  v.  Franklin  Mf'g  Co.,  18  Me.  187. 

6  Meadowcroft  v.  Agnew,  89  111.  469. 

"!  Baxter  v.  M.  K.  &  T.  R.  Co.,  67  Barb.  383. 

8  Baxter  v.  M.  K.  &  T.  R.  Co.,  67  Barb.  383. 

»;?ennsylvania  R.  Co.  v.  Peoples,  31  Ohio  St.  537. 


101  THE   garnishee's    ANSWER.  §    381 

always  sufficient  to  warrant  judgment,  even  where  it  does  not 
negative  garnishee's  liability  in  a  manner  to  clearly  discharge 
him.^*'  And  if  the  answer,  though  favorable  to  the  judgment 
against  garnishee,  is  insufficient  for  that  purpose,  it  cannot  be 
supplemented  by  extrinsic  evidence  on  behalf  of  the  creditor, 
so  that  he  may  recover  partly  on  the  affidavit,  and  partly  on 
the  testimony  offered  by  the  creditor. ^^  Yet  it  is  probably 
true  that  when  the  answer  is  traversed,  in  a  trial  of  the  issues 
thereby  made,  its  statements  may  be  read  in  evidence  by  the  plain- 
tiff, whei'e  they  tend  to  show  liability.^^  He  is  not,  however, 
bound  by  those  he  seeks  to  controvert ;  otherwise,  there  could  be 
no  traverse  of  the  answer,  and  no  issues  to  try.^^  The  answer  is 
only  to  be  taken  as  true,  in  so  far  as  it  affects  the  rights  of  the 
parties  to  the  proceeding.  It  cannot  affect  a  stranger  to 
such  proceeding,  who  may,  for  the  purpose  of  asserting  his 
own  right  to  the  debt  or  property  attached,  show  that  there 
were  other  facts  within  the  knowledge  of  the  garnishee  which 
he  did  not  disclose,  or  that  there  was  collusion  between  him 
and  plaintiff  or  defendant.^* 

§  381.  The  Answer  as  Evidence. — When  the  answers  to 
interrogatories  are  full  and  responsive,  they  are  not  only  taken 
as  jprima  facie  true,  but  are  sometimes  held  to  retain  the  char- 
acter of  evidence,  after  they  have  been  formally  put  in  issue 
by  direct  traverse.  Merely  contradicting  them  does  not  shift 
the  burden  of  proof,  as  they  will  stand  as  evidence  of  the  truth 
of  the  statements  made  until  rebutted. ^  And  when  the  writ- 
ten answer  is  used  as  evidence,  the  whole  of  it,  as  well  that 
which  charges,  as  that  which  discharges,  the  garnishee  must 
be  read.^  When  the  answer  is  received  as  evidence,  it  mat- 
ters not  whether  it  be  a  denial  of  indebtedness,  or  is  expressed 

w  Gordon  v.  Coolidge,  1  Sumn.  C.  C.  537. 

"  Sweet  V.  Read,  13  R.  I.  121. 

^■^  Infra,  §  381. 

13  AdUim  V.  Yard,  1  Rawle,  1G3;  18  Am.  Dec.  608. 

"  Andrews  v.  Herring,  5  ]Mas9.  210. 

iliritt  V.  Bradsbaw,  18  Ark.  530  ;  Erskine  v.  Sangston,  7  "Watts,  150  ;  Helme 
V.  Pollard,  14  La.  An.  306  ;  McEvoy  v.  Lane,  9  Mo.  48  ;  Mason  v.  McCamp- 
bell,  2  Ark.  506;  Burnbam  v.  Dunn,  35  N.  H.  556;  Sise  v.  Drew.  18  N.  H. 
409. 

2  Devries  v.  Buchanan,  10  Md.  210. 


§  381  THE  garnishee's  answer.  102 

in  the  form  of  an  affirmation  of  new  matter,  it  will  stand  until 
cvitlonce  is  introJuced  to  overthrow  it.^ 

It  is  held  in  Illinois,  that  on  the  trial  of  issues  between  plain- 
tiff and  garnishee,  the  answer  should  go  to  the  jury,  who  may 
give  it  such  weight  as  they  may  believe  it  entitled  to,  in  con- 
nection with  all  the  circumstances  of  the  case.*  But  in  Mis- 
souri it  is  held,  that  under  the  statute  of  that  State  the  garnishee's 
answer  can  have  no  greater  effect  as  evidence  in  the  trial  of  the  is- 
sues between  him  and  the  plaintiff,  than  the  answer  to  a  petition 
in  any  ordinax'y  action.^  In  Alabama,  when  the  answer  is  trav- 
ersed, it  may  be  offered  in  evidence  by  the  plaintiff,  but  not 
by  the  garnishee.  When  offered  by  the  plaintiff,  however,  it 
is  held  that  he  cannot  discredit  it  in  a  request  for  instructions 
to  the  jury,  nor  can  the  Court,  ex  moro  motu,  as  in  favor  of 
plaintiff,  give  any  charge  tending  to  discredit  the  answer.^ 
In  Keep  vs.  Sanderson,"  the  Court  inclines  to  the  opinion  that 
the  answer  is  never  admissible  in  evidence  on  the  trial  of  is- 
sues between  plaintiff  and  garnishee,  and  where  the  garnishee 
had  caused  his  own  deposition  to  be  taken  and  read  on  such 
trial,  it  was  held  no  error  to  exclude  the  answer  as  evidence.^ 
In  Mississippi  it  is  decided  that  the  answer  does  not  go  to  the 
jury  as  evidence.^  So  in  South  Carolina,  where  the  "return" 
fills  the  place  of  the  answer,  it  cannot  be  read  in  evidence,  on 
a  "  susfsrestion  contestinsc  o;arnishee's  return."  ^^  So  also  in  the 
District  of  Columbia  it  is  held,  that  the  answer  cannot  be  read 
in  evidence  in  favor  of  the  garnishee. ^^  In  a  somewhat  early 
case  in  Pennsylvania,  a  different  doctrine  is  announced  from 
that  laid  down  in  the  Alabama  case  cited  above, ^^  in  reference 
to  the  effect  of  the  answer,  where  offered  in  evidence  by  the 
plaintiff.     In  Alabama  it  is  held  that  having  offered  the  an- 

SHolton  V.  South  Pacific  R.  Co.,  50  Mo.  151. 
4  Schwab  V.  Gingerick,  13  lU.  697. 

5 Davis  V.  Knapp,  8  Mo.  657  ;  McEvoy  t;.Iiane,9  Moy48-j-Smitli v^Heidecker 
39  Mo.  157. 

6  Price  V.  Mazouge,  31  Ala.  701. 
'  12  Wis.  352. 

8  Keep  V.  Sanderson,  12  "Wis.  352. 
SLasley  r.  Sisloff,  7  How.  (Miss.)  157. 
1"  Dawkins  v.  Gault,  5  Rich.  L.  151. 

u  Gushing  r.  Laird,  6  Benedict,  408.    See  Peiffer  v.  Graves,  26  N.  H»  258. 
1^  Price  V.  Mazouge,  31  Ala.  701. 


103  THE  garnishee's   ANSWER.  §   382 

8wer,  he  is  bound  by  its  recitals,  and  cannot  discredit  such 
as  tend  to  discharge  the  garnishee.  In  the  Pennsylvania  case 
referred  to,  it  is  held  that  the  plaintiff  may  offer  such  answer 
in  evidence,  and  then  contradict  it  by  showing  that  the  gar- 
nishee has  made  different  statements.  He  is  not  bound  by  it.^'^ 
So  in  Wisconsin,  it  is  held  that  plaintiff  may  read  in  evidence 
any  part  of  the  garnishee's  answer,  and  contest  the  remainder, 
where  its  truth  is  not  admitted  by  the  pleadings. ^^  There 
seems  no  good  reason  why  this  principle  should  not  govern  the 
use  of  the  answer,  as  evidence  for  plaintiff  in  any  case.  The 
plaintiff  may  certainly  accept  of  garnishee's  statements,  where 
they  admit  indebtedness  or  possession  of  property,  without  be- 
ing bound  by  all  the  statements  made  by  the  garnishee  for  the 
purpose  of  securing  his  discharge.  But  where  the  answer  is 
controverted,  and  is  permitted  to  stand  as  evidence,  it  is  held 
that  it  can  only  be  overthrown  by  evidence  which  tends  to  dis- 
prove the  facts.  This  result  cannot  be  reached  by  impeaching 
the  garnishee  in  the  manner  of  impeaching  a  witness,  by  show- 
ing him  to  be  unworthy  of  l^elief.^^ 

§  382.  Answer  of  Prior  Garnishineiit. — Where  at  the  time 
the  garnishee  is  summoned  there  is  another  suit  pending  against 
the  same  defendant,  in  which  the  same  party  was  garnished, 
he  cannot  answer  in  both  cases  with  safety,  without  noticing 
in  the  answer  to  the  latter  the  pendency  of  the  prior  garnish- 
ment. Where  he  answers  in  this  manner,  and  allows  judg- 
ment to  go  against  him,  which  he  pays,  and  judgment  is  also 
obtained  against  him  in  the  subsequent  case,  a  Court  of  Equity 
will  not  in  every  instance  relieve  him  from  his  embarrassment 
by  enjoining  the  latter  judgment.  Such  relief  will  be  uni- 
formly refused,  when  it  appears  that  the  judgment  which  it 
is  sought  to  enjoin  was  the  result  of  the  negligence  of  gax*- 
nishee  in  failing  to  disclose  the  prior  garnishment  in  his  an- 
swer.^ Although  the  pendency  of  the  prior  suit  and  garnish- 
ment for  the  same  demand  may  not  serve  in  every  case  as  a 

13  Adlum  V.  Yard,  1  Rawle,  1G.3  ;  18  Am.  Dec.  G08. 

i^Pitntiss  V.  Danaber,  20  Wis.  311.    See  also,  Hazeltine  v.  Page,  4  Vt.  53; 
Thompson  v.  Stewart,  3  Conn.  171. 
15  Barnes  r.  Wayland,  14  La.  An.  791. 
1  Houston  V.  Walcott,  7  la.  173. 


§    oS-2  THE   garnishee's    ANSWER.  101 

defense  to  tlie  second  action,  it  Is  a  matter  which  the  gar- 
nishee  cannot  safely   ignore.     It   is  held  in   Wisconsin,  that 
where  the  two  cases  are  pending  simultaneously,  the  garnishee 
should  move  for  a  stay  of  proceedings  In  the  second  suit,  un- 
til the  former  is  terminated.^     When  judgment  has  been  ren- 
dered In  the  first  case,  where  it  is  sufficient  In  amount  to  ab- 
sorb the  property  or  fund  In  the  hands  of  the  garnishee,  it  will, 
in  general,  operate  as  a  bar  to  a  subsequent  recovery.     But 
this  is  in  some  cases  held  subject  to  conditions.     Thus,  where 
in  an   action  brought  in  another  State,  the  garnishee  denied 
a  fact  wliich,  if  disclosed,  would,  under  the  laws  of  that  State, 
have  prevented  him  from  being  charged,  it  was  held  in  Mas- 
sachusetts, that  when  sued  on  the  demand  by  his  creditor,  who 
Avas  defendant  In  the  foreign  suit,  the  payment  of  the  execu- 
tion issued  on  the  foreign  judgment  was  no  defense  to  the 
action.^     The  payment  of  the  senior  judgment  will,  under  the 
peculiar  construction  of  some  of  the  statutes,  protect  the  gar- 
nishee, even  against  a  judgment  asked  in  a  suit  In  which  sum- 
mons in  garnishment  was  first  served.*     But  this  is  where  no 
account  Is  taken  of  the  quasi  lien  obtained  upon  the  fund  in 
the    garnishee's    hands    by  priority  of    service.'"'      The    most 
prevalent  doctrine  is,  that  the  obligation  imposed  upon  the  gar- 
nishee to  answer  when  summoned,  will  protect  him  against  a 
subsequent  summons  in  garnishment  on  account  of  the  same 
matter.*^     But  the  prior  garnishment,  to  be  available  for  the 
purpose  of  discharging  garnishee  from  liability  in  the  subse- 
quent suit,  must  be  properly  pleaded,  whether  it  is  intended  to 
operate  in  bar  or  abatement  of  the  action.     In  some  cases, 
the  Courts  seem  to  require  very  explicit  statements  in  this  re- 
s[)ect.     Thus,  where  in  an  action  by  the  creditor,  after  admit- 
ting a  certain  sum  due,  it  was  alleged  in  the  answer  as  a  rea- 
son for  non-payment,  that  a  third  party  had  attached  the  in- 
debtedness in  an  action  against  the  plaintiff,  and  that  said  ac- 
tion "  has  since  been  pending,''  and  that  defendant  had  never 
been  released  from  its  obligations  by  reason  of  such  levy,  the 

2  Preutiss  v.  Danalier,  20  Wis.  311. 

3  Wilkinson  v.  Hall,  6  Gray,  568. 

4  Hall  V.  Daniel,  G2  Ga.  G20. 
^Anlc,  §  :538. 

.  esievers  v.  Woodburn  etc.  Co.,  43  jNIicli.  275;  Noyes  v.  Foster,  48  Micli.  273. 


105  THE   garnishee's   ANSWER.  §   383 

answer  was  held  insufficient,  and  did  not  bar  the  recovery  of 
judgment  on  motion,  under  the  Code.  The  answer,  to  have 
been  effectual,  should  have  stated  that  the  attachment  and 
levy  were  still  in  force. '^  This  case,  it  will  be  observed,  was 
where  the  action  was  brought  by  the  creditors  of  the  garnishee, 
and  the  pendency  of  the  garnishment  proceeding  was  attempt- 
ed to  be  set  up  in  bar  of  the  action,  by  an  answer  to  the  com- 
plaint. But  the  ruling  would  probably  have  been  the  same, 
had  the  answer  been  to  a  subsequent  garnishment.  By  whom- 
soever it  may  be  sought  to  recover  from  the  debtor  after  the 
amount  in  his  hands  has  been  attached  in  another  State,  the 
pendency  of  the  prior  suit  may  be  pleaded  in  abatement  to  the 
second.® 

§  383.  Amendment  of  the  Answer. — The  circumstances 
under  which  tiie  garnishee  will  be  permitted  to  amend  his  an- 
swer are  variable.  It  rests  to  a  gx'eat  degree  with  the  Court, 
in  the  exercise  of  its  discretion,  except  where  that  discretion  is 
controlled  by  statute.  It  has  been  held  within  the  discretion 
of  the  Court  to  permit  the  garnishee  to  amend  his  answer,  even 
after  an  issue  has  been  tried  between  plaintiff  and  one  to 
whom  the  debt  attached  is  supposed  to  be  transferred.^  Where 
the  o-arnishee  after  answering  interrogatories  discovers  that  he 
has  answered  incorrectly,  or  in  such  a  manner  as  to  warrant 
an  inference  different  from  what  was  intended,  he  may  be  per- 
mitted to  make  additional  answers  without  further  interroga- 
tories, correcting  or  qualifying  his  former  answers.^  When 
the  answer  is  responsive  to  the  question,  though  it  is  less  com- 
prehensive than  it  ought  to  be,  where  the  interrogatories  are 
such  as  admit  of  a  truthful  though  unsatisfactory  answer,  it  is 
within  the  discretion  of  the  Court  to  allow  the  garnishee  to 
answer  more  fully.'^  It  is  also  held,  that  after  the  garnishee 
has  filed  his  general  answer,  and  answers  to  such  interroga- 
tories as  may  have  been  propounded  to  him  by  plaintiff,  and 
before  final  judgment  thereon,  the  Court  may  permit  the  fil- 

7  Marsli  V.  ^Vest  etc.  Mf  g  Co.,  46  N.  Y.  Sup'r  Ct.  8. 

8  Roche  V.  Rhode  Island  Ins.  Ass.,  2  111.  App.  360. 

1  Buford  V.  Welborn,  6  Ala.  818. 

2  Carrique  v.  Sidebottom,  3  Met.  (Mass.)  297, 
8  Davis  V.  Oakford,  11  La.  An.  379. 


§  383  THE  garnishee's  axswer.  106 

ing  of  a  new  answer  on  the  garnishee's  own  motion,  without 
new  Interrogatories.  But  when  such  additional  answer  Is 
put  In,  the  philntlff  should  be  allowed  to  file  new  Interrogato- 
ries.* So  It  Is  held  that  the  garnishee  may  amend  his  answers 
to  Interrogatories  after  the  order  ^^ro  confesso  has  been  made, 
and  before  judgment  against  defendant;  but  this  Is  subject  to 
the  condition  that  the  answers  are  not  manifestly  evasive,  and 
calculated  to  jeopardize  the  rights  of  the  attaching  creditor, 
or  defeat  the  jurisdiction  of  the  Court  over  the  defendant.^ 
It  Is  even  laid  down  as  the  duty  of  the  Court  under  proper  cir- 
cumstances, not  only  to  permit  the  amendment  of  the  answer, 
but  to  order  It  to  be  done.  This  is  put  upon  the  ground  that 
it  is  to  the  interest  of  all  parties  that  the  power  to  authorize 
amendments  should  exist,  and  that  it  should,  under  proper  re- 
strictions, be  exercised.  But  where  the  answer  of  the  garnishee 
relates  to  matters  which  must  necessarily  be  within  his  own 
knowledge,  the  Court  ought  to  exercise  caution  in  permitting 
him  to  alter  the  "  return,"  under  pretense  of  amendment. 
Great  abuse  might  be  practiced,  if  too  liberal  indulgence  were 
allowed  in  this  respect.^  Both  upon  principle  and  authority  it 
may  be  asserted  that,  unless  where  it  Is  authorized  by  express 
provision  of  the  statute,  neither  the  general  answer  of  the  gar- 
nishee, nor  his  answers  to  interrogatories  filed  in  the  case,  can 
be  amended  by  the  garnishee  In  any  substantial  particular,  as  a 
matter  of  course,  or  without  leave  of  Court  first  obtained.^  This 
places  the  matter  entirely  within  the  Court's  discretion.  Amend- 
ments will  probably  not  be  allowed  for  the  asking, without  a  show- 
ing made  to  the  Court  of  the  amendments  which  the  party  desires 
to  make.  In  a  somewhat  early  case  In  Louisiana,  it  Is  decided 
that  the  rules  relative  to  Interrogatories  on  "  facts  and  articles," 
are  more  rigid  than  those  that  govern  ordinary  answers,  and 
that  amendments  will  not  be  allowed  to  such  answers.     It  is 


4  Hovey  v.  Crane,  12  Pick.  167. 

^Tapp  V.  Green,  22  La.  An.  42. 

6  Xeilson  v.  Scott,  1  Rice's  Dig.  (S.  C.)  80. 

"  But  tliis  does  not  seem  to  prevent  the  supply  ot  mere  formal  omissions, 
howsoever  important,  without  leave  of  Court.  Thus  it  was  held,  that  wliere 
there  were  doubts  as  to  the  legality  of  the  verification,  the  garnishee  might  re- 
swear to  his  answer  while  the  iiroceeding  was  pending,  and  need  not  iirst  ob- 
tain leave  of  Court  to  do  so.— Burrus  v.  Moore,  63  Ga.  405. 


107  THE  GARNISHEE'S   ANSWER.  §    383 

laid  down  tliat  the  garnishee  cannot  avoid  the  effect  of  his 
nefjlijjence  in  failin<x  to  answer  intcrroiratories  on  facts  and 
ai'ticles,  but  that  judgment  will  be  rendered  against  him.^ 
The  rigor  of  the  doctrine  expressed  in  this  case  has  manifest- 
ly been  modified  by  later  decisions,  already  cited  in  this  sec- 
tion. But  there  is  a  principle  running  through  them  all,  to 
the  effect  that  the  power  of  autiiorizing  amendments  is  not  to 
be  exercised  in  behalf  of  a  neolifrent  jrarnishee,  or  one  who 
has  answered  evasively.  Thus  it  is  held  in  Davis  v.  Oakford,* 
where,  as  we  have  seen,  responsive  answers  may  be  amended, 
that  an  answer  manifestly  evasive  ought  not  to  be  amended, 
as  such  practice  might  lead  to  frivolous  delays.^"  So  it  is  held, 
that  after  answering  and  acknowledging  indebtedness  to  the 
principal  defendant,  the  garnishee  will  not  be  permitted  to  file 
a  new  set  of  answers,  the  effect  ef  which  is  to  release  himself 
from  judgment  in  the  suit.  This  is  placed  upon  the  ground 
that  ample  opportunity  was  afforded  him  to  answer  fully,  and 
it  was  his  own  fault  or  negligence  that  he  failed  to  do  so.^^ 
But  it  cannot  be  accepted  as  an  arbitrary  rule,  that  the  gar- 
nishee shall  never  be  permitted  to  amend  his  answer,  when  the 
effect  of  such  amendment  is  to  discharge  him  where  he  would 
otherwise  be  bound.  Where,  as  in  the  case  referred  to,  the 
failure  to  answer  to  this  effect  was  owing  to  garnishee's  own 
negligence,  the  reason  for  refusing  permission  to  amend  is  good 
and  sufficient.  But  circumstances  may  arise  subsequent  to 
answering  in  the  first  instance,  by  which  the  garnishee  is 
made  aware  of  the  facts  that  warrant  his  discharge.  The 
failure  to  state  such  facts  in  his  original  answer  may  not  be 
his  fault;  and  where  such  is  the  case,  the  Court,  in  the  exercise 
of  a  sound  discretion  and  in  the  interest  of  justice,  will  permit 
him  to  amend  the  answer.  As  we  have  seen,  it  is  held  not 
only  that  the  garnishee  may  amend,  to  show  an  assignment 
coming  to  his  knowledge  subsequent  to  the  filing  of  his  answer, 
but  that  he  must  so  amend,  in  order  to  protect  himself  against 
double  liability .^2 

8  De  Blanc  v.  Webb,  5  La.  82. 

9  n  La.  An.  379. 

1"  Davis  V.  Oakford,  11  La.  An.  379. 
31  Tliomas  v.  Fuller,  26  La.  An.  625. 
12  Lewis  V.  Dunlop,  57  Miss.  130. 


§  384  THE  gaenishee's  answer.  108 

§  384.  The  Doctrine  of  Estoppel  applied  to  Garnishees. — 
Very  nearly  akin  to  the  subject  of  the  next  preceding  sec- 
tion, is  the  doctrine  of  estoppel.  It  is  held  that  where  the 
garnishee  has  once  answered  admitting  his  liability,  he  is 
thereby  estopped  from  saying  afterwards  that  he  is  not  liable.^ 
This  doctrine,  rigidly  adhered  to,  would  almost  entirely  cut  off 
amendments  to  the  answer,  where  the  effect  would  be  to  dis- 
charge the  garnishee  otherwise  chargable.  But  it  will  not 
be  followed  to  such  an  extent.  The  garnishee  may  in  his 
answer  state  facts  calculated  tocharo:e  him,  throuiih  io;norance 
or  excusable  inadvertence ;  or  he  may  state  such  liability,  more 
as  a  conclusion  drawn  from  facts  than  a  matter  of  fact,  and 
subsequently  discover  his  error.  In  such  a  case  it  would  seem 
unduly  harsh  to  hold  the  garnishee  estopped.  Where  this 
doctrine  is  to  be  applied  at  all,  it  would  seem  to  find  occasion 
when  the  garnishee  has  represented  to  the  attaching  creditor 
that  he  was  indebted  to  the  attachment  debtor,  or  in  possession 
of  some  portion  of  his  property ;  and  that  if  he  were  garnished, 
lie  would  pay  the  money  to  plaintiff.  But  in  a  case  of  this 
kind  it  was  held  that  such  representations  did  not  estop  the 
garnishee,  when  summoned,  from  denying  all  indebtedness  or 
liability  in  his  answer.^  But  this  does  not  exclude  former  ad- 
missions of  the  garnishee,  as  evidence  on  the  trial  of  the  issues 
between  him  and  the  plaintiff.  Evidence  of  admissions  made 
to  third  persons  has  been  held  sufficient  to  sustain  a  judgment 
against  the  garnishee.^  The  principle  of  estoppel  will  not  be 
operative  against  garnishee  by  reason  of  his  former  statements, 
when  the  sworn  answer  stands  uncontroverted.  It  is  probably 
only  when  the  plaintiff  traverses  the  answer  denying  liability, 
that  the  former  statements  or  admissions  will  figure  in  the 
controversy  at  all. 

§  385.  Answers  by  Corporations — By  Agents. — Ordinarily, 
the  answer  must  be  made  by  the  party  served.  To  allow  one 
to  appear  as  garnishee  by  a  representative,  would  be  in  a  man- 
ner to  permit  a  witness  to  testify  in  a  matter  where  he  pro- 

1  Woodbridge  v.  Winthrop,  1  Koot  (Conn.),  557. 

2  Lewis  V.  Prenatt,  24  Ind.  98. 

8  McKee  v.  Anderson,  35  Ind.  17. 


109  THE   garnishee's   ANSWER.  §   385 

fessed  to  be  Indifferent,  by  proxy.  Hence,  the  power  to  answer 
intcri'Ogatories  on  oath  cannot  bo  conferred  upon  an  agent  or 
attorney.^  It  Is  held  that  the  power  conferred  by  one  person 
on  another  to  represent  him  In  any  Court,  does  not  authorize 
the  agent  so  appointed  to  acknowledge  a  debt.^  When  the 
agent  himself  Is  garnished,  It  Is  quite  another  matter,  irrespec- 
tive of  the  representative  capacity  In  which  he  holds  the  prop- 
erty sought  to  be  attached.  The  summons  is  to  him,  and  he 
is  required  to  answer  for  himself  concerning  his  own  possession 
of  the  property  of  defendant.^ 

AVhen  the  garnishee  Is  a  corporation,  the  doctrine  that  the 
answer  must  be  made  by  the  person  served  Is  necessarily  mod- 
ified to  meet  the  peculiar  circumstances  of  the  case.  The  cor- 
poration can  do  nothing,  except  by  Its  representatives,  and 
hence  the  answer  must  be  made  by  an  agent.  And  It  seems 
of  no  consequence  that  the  service  Is  made  upon  one  officer  of 
the  corporation,  and  the  answer  made  by  another  officer, 
where  both  are  authorized  to  represent  the  company,  as  the 
procedure  does  not  look  to  the  individual  liability  of  either, 
but  seeks  to  charge  the  corporation.'^  It  was  held  In  Pennsyl-" 
vania  that  a  foreign  corporation  doing  business  in  that  State, 
under  a  statute  that  required  the  designation  of  a  resident  of- 
ficer upon  whom  process  might  be  served,  could  be  garnished 
for  a  judgment  debt  due  a  non-resident  defendant.^  When 
such  an  officer  is  designated  to  accept  service,  he  is  the  proper 
one  to  make  the  answer.  At  least,  an  answer  when  made  by 
him  would  not  be  objectionable  for  that  reason,  though  it 
might  be  open  to  the  objection  of  uncertainty,  when  it  was 
manifest  that  he  was  not  sufficiently  qualified  by  knowledge 
to  answer  fully  and  positively  to  the  interrogatories.  In  no 
event  would  the  answer  be  rejected  for  the  reason  that  it  was 
made  by  an  officer  other  than  the  one  served  with  jjrocess. 
The  matter  of  Inquiry  might  embrace  matters  peculiarly  with- 
in the  knowledge  of  other  officers ;  and  whether  those  qualified 

1  Dickson  v.  Morgan,  7  La.  An.  490. 

2  Diekson  v.  Morgan,  7  La.  An.  490: 
8  Center  v.  McQuestion,  18  Kan.  496. 

*  Duke  V,  R.  I.  Locomotive  Works,  11  R.  T.  599. 

6  Fithian,  v.  N.  Y.  &  E.  R.  Co.,  31  Pa.  St.  114;  ^<er§§-342,  343» 


I  386  THE  garnishee's  answer.  110 

to  answer  were  residents  of  the  State  or  not,  their  ansvrers, 
beino-  the  answers  of  the  corporation,  shoukl  be  accepted  upon 
the  same  terms  and  subject  to  the  same  conditions  as  the 
answer  of  an  individual.  Shoukl  the  officer  upon  whom  ser- 
vice was  made  leave  the  answer  to  one  without  sufficient  knowl- 
edo"e  of  the  facts,  and  for  this  reason  it  proved  unsatisfactory, 
such  conduct  might  well  be  imputed  to  the  corporation  as  an 
evasion. 

§  386.  The  effect  of  an  Answer  as  a  General  Appearance.— 
The  garnishee  is  brought  into  Court  by  process,  and  in  order 
that  it  may  have  compulsory  effect,  it  must  be  regularly  issued 
and  served.  The  reasons  why  he  may  not  waive  this  process 
and  appear  voluntarily,  so  as  to  bind  the  defendant  and  other 
creditors  who  may  have  an  interest  in  resisting  the  attachment 
of  the  fund  in  his  hands,  have  been  fully  stated  elsewhere.^ 
But  there  are  irregularities  which,  it  is  held,  he  may  waive, 
in  so  far  as  they  affect  himself,  by  appearance  and  answer. 
Thus,  where  objections  were  raised  to  the  form  of  the  affidavit 
in  garnishment,  particularly  as  to  the  manner  in  which  it  was 
si""ned,  as  well  as  to  the  manner  in  which  the  summons  was 
served  upon  the  garnishee,  it  was  held  that  such  objections 
were  waived  by  appearance  and  answer.^  So  it  is  held  that 
where  the  affidavit  is  insufficient  in  matters  of  more  importance 
than  the  mere  form  in  which  it  is  signed  by  the  affiant,  where 
matters  of  substance  are  omitted,  the  garnishee  should  move 
to  quash ;  and  where  he  fails  to  do  so,  but  answers  without 
objection,  he  thereby  waives  the  defect.^  But  where  the  an- 
swer is  relied  upon  as  a  waiver  of  jurisdictional  objections,  to 
the  extent  of  substituting  the  voluntary  acquiescence  of  the 
garnishee  for  the  compulsory  process  by  which  alone  the  ef- 
fects or  credits  in  his  hands  may  be  subjected  to  the  judgment 
against  defendant,  the  weight  of  authority  is  against  giving 
this  sweeping  effect  to  the  voluntary  answer.  He  may  not 
commit  other  parties  interested  in  the  contest,  even  where  he 
may  be  bound,  by  a  failure  to  take  timely  advantage  of  defect- 

1  Ante,  §  361. 

2  Moody  V.  Alter,  12  Heisk.  142. 
8  Stevens  v,  Dillman,  86  lU.  233. 


Ill  THE   garnishee's    ANSWER.  §   387 

ive  proccrlure.4  It  was  held  in  Arkansas,  that  an  objection 
to  the  writ  of  garnishment,  for  the  want  of  a  seal  came  too 
late  from  the  garnishee,  after  answer.^  But  in  Vermont  it 
was  held  that  the  garnishees,  by  appearing,  could  not  waive 
the  objection  that  the)'  were  non-residents  of  the  State,  for 
the  I'eason  that  this  was  an  objection  going  to  the  jurisdiction 
of  the  Court.  Any  person  might  make  the  objection,  or  the 
Court  might  dismiss  of  its  own  motion,  where  it  was  disclosed 
by  the  answer  that  the  parties  served  with  summons  of  gar- 
nishment, resided  in  another  State,  and  had  only  come  into  Ver- 
mont for  a  temporary  purpose,  and  were  residing  for  the  sea- 
son at  a  logging  camp,  as  this  did  not  make  them  residents 
of  the  State.*^ 

§  387.  Exceptions  to  the  Sufficiency  of  the  Answer. — The 
plaintiff  is  not  bound  in  every  instance  to  abide  by  the  general 
answer,  or  the  answers  to  particular  interrogatories,  where 
they  are  not  responsive,  or  are  insufficient  for  any  reason  to 
settle  definitely  the  question  of  the  garnishee's  liability.  If 
exceptions  to  such  answers  are  sustained,  and  the  garnishee, 
on  being  ordered  to  answer  more  fully,  refuses  to  do  so,  judg- 
ment may  be  rendered  against  him  as  for  failure  to  answer.^ 
The  practice  under  the  different  statutes,  in  case  of  insufficient 
or  defective  answers,  is  not  uniform.  In  some  of  the  States, 
judgment  against  the  garnishee  seems  to  follow  the  condemna- 
tion of  the  answer,  subject  to  the  discretion  of  the  Court  as  to 
whether  he  shall  be  permitted  to  amend  his  answer,  or  file  new 
answers  that  disclose  the  matter  of  inquiry  more  fully .^  But 
in  Michigan  the  only  course  to  be  pursued  where  plaintiff  finds 
the  answer  insufficient  is  to  except,  and  obtain  an  order  on 
the  garnishee  for  further  disclosure  ;  and  where  this  is  not 
done,  the  issue  must  be  determined  on  the  showing  first 
made.^     Plaintiff's  exception  to  the  answer  does  not  render  it 

*  Ante,  §§  336,  301;  Freeman  v.  Miller,  51  Tex.  443. 
6  Richardson  v.  White,  19  Ark.  241. 
6  Eindge  v.  Green,  52  Vt.  204. 

1  Richardson  v.  White,  19  Ark.  241. 

2  Bii-ford  V.  Welborn,  6  Ala.  818  ;  DeBlanc  v.  Webb,  5  La.  82  ;  Davis-  v.  Oak- 
ford,  11  La.  An.  379  ;  Supra,  §  381. 

8  People  V.  Cass  County  Jijidge,  39  Mich.  407. 


§  388  THE  garxishee's  answer.  .  112 

necessary  for  garnishee  to  answer  further,  unless  the  Court 
deems  the  original  answer  insufficient.  Mere  captious  excep- 
tions will  not  be  regarded,  nor  will  the  garnishee  be  required 
to  answer  further  in  any  case,  where  he  has  already  answered 
fully  and  intelligibly.^  In  Georgia,  the  reasonable  doctrine  is 
laid  down  that  if  the  plaintiff  is  not  content  with  garnishee's  an- 
swer, it  must  be  excepted  to  or  traversed,  and  in  cither  case  it 
is  amendable.  The  garnishee  ought  to  be  notified,  in  one  of 
the  ways  indicated,  that  his  answer  is  not  satisfactory  ;  and 
where  the  plaintiif  fails  to  take  exceptions  to  or  traverse  the 
answer,  he  cannot  have  it  stricken  out  on  motion ;  nor  can  he 
take  judgment  for  anything  more  than  the  answer  expi'cssly 
admits,  and  for  nothing  whatever  on  account  of  goods  that 
come  to  the  possession  of  the  garnishee  after  service  of  pro- 
cess.^ 

§  388.  Time  witMn  wMcli  Answer  must  be  Made. — The  time 
for  answering  in  garnishment,  like  that  for  answering  in  the 
main  action,  is  generally  stated  in  the  process  by  Avhich  juris- 
diction of  the  person  is  obtained.  It  is  variously  fixed  by  stat- 
ute, and  is,  for  the  most  part,  about  the  same  as  the  time  pre- 
scribed for  answering  an  ordinary  summons.  This  is  not  only 
different  in  different  States,  but  varies  in  the  same  State  for 
different  Courts.  In  Georgia,  it  is  held  that  in  Justices'  Courts 
the  answer  must  be  made  in  ten  days  from  service,  whether 
that  period  is  mentioned  in  the  summons  or  not.^  In  Rhode 
Island,  the  garnishee  seems  to  have  the  entire  term  in  Courts 
of  Record  within  which  to  answer,  as  it  is  held  that  the  gar- 
nishee may  make  his  affidavit  at  any  time  during  the  term  of 
Court  next  after  garnishment,  though  judgment  may  have  been 
previously  entered  during  the  same  term.^  Whatever  be  the 
period  fixed,  it  is  within  the  power  of  Courts  to  extend  it,  on 
application,  for  good  cause  shown. ^ 

§  389.  Consequences  of  Failure  in  Answering. — Garnishee's 
Allowance. — But  a  mere  failure  to  answer  within  the  time  pre- 

4  Carrique  v.  Sidebottom,  3  Met.  (Mass.)  297. 
6  Burrus  v.  Moore,  63  Ga.  405. 

1  Hearn  v.  Adamson,  64  Ga.  608. 

2  Sweet  V.  Read,  12  R.  I.  121. 

3  Karnes  v.  Pritcbard,  36  Mo.  135;  Proseus  v.  Mason,  12  La.  16. 


113  THE   garnishee's   ANSWER.  §    389 

scribed,  where  it  is  definitely  fixed,  is  less  likely  to  result  dis- 
astrously to  the  garnishee  than  some  other  omissions  of  duty 
on  his  part.  Ordinarily,  upon  a  proper  showing,  the  time  for 
answering  will  be  extended.  So,  in  general,  an  answer  may 
be  filed  at  any  time  before  advantage  has  been  taken  of  its  ab- 
sence. 

One  of  the  penalties  inflicted  upon  the  garnishee  for  mis- 
taking the  rights  of  the  plaintiff  in  the  premises  is,  that  he 
may  not  only  be  required  to  pay  his  debt,  but  the  costs  of  the 
litigation  as  well.  True,  It  is  pretty  generally  held  that  if  he 
answers  promptly  and  fully,  and  submits  to  the  decision  of  the 
Court,  he  will  not  be  required  to  pay  any  costs. ^  But  as  we 
have  already  seen,  he  cannot  always  with  safety  submit  to 
the  decision  of  the  Court  without  resistance.  The  alternative 
may  be  forced  upon  him,  to  either  submit  without  objection 
and  save  his  costs,  or  contest  the  case  with  the  plaintiff  in  oi'- 
der  to  save  himself  from  double  liability  for  the  same  debt. 
For  if  he  makes  useless  resistance,  he  will  Incur  costs.^  And 
if  he  quietly  submits  to  judgment,  when  he  might  have  suc- 
cessfully defended  against  the  garnishment,  he  cannot  interpose 
the  judgment  therein  rendered,  in  defense  of  an  action  against 
him  by  his  original  creditor.^  Under  these  circumstances,  con- 
sidering that  the  garnishee  is  a  third  i^arty,  upon  whom  the 
Courts  are  always  inclined  to  look  as  a  purely  disinterested  stake- 
holder, he  should  be  allowed  as  a  matter  of  right  some  definite 
allowance  to  secure  him  against  loss  in  consequence  of  the  un- 
wonted position  he  occupies.  He  is  generally  allowed  a  reason- 
able attorney's  fee ;  but  even  this  is  sometimes  placed  under  the 
discretionary  control  ^f  the  trial  Court,  with  no  right  of  appeal 
by  the  garnishee,  in  case  he  is  aggrieved  by  the  decision  of 
the  Court.*  When  the  defense  of  the  garnishee  is  adjudged 
useless,  and  the  costs  are  taxed  against  him,  he  will  not  be  re- 
lieved therefrom  because  of  insufficiency  in  the  service  of  the 
wrlt.^ 

For  a  failure  to  answer,  or  to  answer  fully  and  with  certain- 

1  Lucas  V.  Campbell,  88  III.  447. 

2  Lucas  u.  Campbell,  88  111.  447;  Strong  v.  Hollon,  39  Mich.  411. 

3  Supra,  §  371. 

*  Hawkins  i'.  Graham,  128  Mass.  20. 
5  Brainard  v.  Shannon,  60  Me.  342. 
II.  Attach.— 8. 


§  389  THE  garnishee's  answer.  114 

tv,  we  liavG  already  seen  that  there  are  various  degrees  of 
harslincss  with  Avhich  he  may  be  punished,  the  lightest  of 
which  is  tliat  of  being  required  to  pay  the  costs.  He  may  al- 
so be  adjudged  to  ])ay  the  amount  of  his  debt  in  satisfaction  of 
plaintiff's  judgment,  regardless  of  whether  it  satisfies  the  de- 
mand against  him  or  not.*^  His  failure  to  answer  satisfactorily 
may  be  treated  as  a  failure  to  make  any  answer  whatever;"  but 
this  latter  result  does  not  follow  Avith  anything  like  uniformity. 
As  we  have  seen,  a  defective  answer  can  only  be  taken  advan- 
tage of  in  some  jurisdictions  by  exceptions,^  and  when  except- 
ed to  may  be  amended.^  Another  consequence  that  may  fol- 
low, where  the  garnishee  refuses  to  answer  as  to  property  of 
defendant  in  his  possession,  is  that  the  Court  will  order  such 
property  to  be  turned  over  to  the  sheriff.^''  In  a  somewhat  early 
case  in  Kentucky,  it  was  held  that  where  the  garnishee  de- 
clared to  plaintiffs  befo.re  suit  that  he  had  sufficient  in  his 
hands  to  pay  their  demands,  and  paid  a  part,  and  afterwards 
put  in  an  equivocal  and  evasive  answer,  he  should  be  required 
to  pay  the  Avhole  demand. ^^  And  in  Vermont  it  is  held,  that 
whether  or  not  judgment  shall  be  against  the  garnishee  for  his 
refusal  to  answer,  rests  in  the  discretion  of  the  Court,  and  is 
not  reviesvable  on  error. ^^  It  is  held  in  Maine,  that  the  gar- 
nishee will  be  charged  when  he  declines  to  answer  pertinent 
interrogatories  calling  for  facts  which  may  be  important  in  de- 
termining his  true  legal  position  towards  the  principal  defend- 
ant, and  in  testing  the  correctness  of  his  own  legal  conclusion 
that  he  does  not  owe  the  principal  defendant,  or  has  nothing 
in  his  hands  for  which  he  is  legally  accountable  to  him.^"^  In 
Wisconsin,  before  entering  judgment  against  the  garnishee  for 
his  I'efusal  to  answer  proper  questions,  it  is  made  the  duty  of 
■the  Court  to  inform  him  of  his  obligation  to  answer.^*     For  a 

^ Supra,  §  377;  Patterson  v.  Buckminster,  14  Mass.  144. 
^  Supra,  §  375  ;  Hart  v.  Dalilgreen,  16  La.  559. 

8  Supra,  §  387. 

^  Supra,  §383. 

^0  Hall  V.  Brooks,  25  Hun.  577.     The  property  may  be  ordered  to  be  turned 
over  to  the  officer,  when  the  garnishee  is  not  in  default. — Orton  v.  Noonan,  27 
Wis.  572. 
11  Keel  V.  Ogden,  5  Mon.  362. 

i2Knapp  V.  Levanway,  27  Vt.  298  ;  Worthington  v.  Jones,  23  Vt.  546. 
13  Jilansfield  r.  Kew  England  etc.  Co.,  58  Me.  35. 
"Wood  V.  Wall,  24  Wis.  647. 


115  THE   garnishee's   ANSWER.  §   389 

failure  to  appear  for  examination  on  return  day  of  the  sum- 
mons, it  is  held  in  Michigan  that  judgment  cannot  be  rendered 
against  him,  unless  the  disclosures  in  his  answer  prima  facie 
show  him  liable.  ^^  Where  the  garnishee  stated  in  his  an- 
swer that  he  owed  the  debtor  three  hundred  dollars,  but  was 
informed  that  a  bill  had  been  filed  to  compel  him  to  pay  this 
sum,  and  more,  on  a  lien  on  property  sold  him  by  debtor,  and 
the  justice  before  whom  he  answered  rendered  judgment 
against  him  for  that  amount,  it  was  held  that  the  answer  did 
not  justify  the  judgment.!^  There  is  a  theory  in  regard  to  the 
judgment  rendered  against  garnishee  for  failure  to  answer, 
that  such  judgment  is  not  to  be  regarded  as  a  penalty  for  such 
failure  ;  but  Is  rendered  against  him  for  the  reason  that,  hav- 
ing failed  to  make  full  answer,  he  is  supposed  to  tacitly  admit 
that  he  has  the  means  in  his  hands,  or  knows  of  property  from 
which  payment  could  be  made.-''^ 

The  fact  that  the  justice  who  issued  the  writ  told  the  gar- 
nishee that  he  had  until  next  term  to  answer,  and  thereby  the 
garnishee  was  misled  and  failed  to  answer,  was  held  not  to 
excuse  such  failure,  or  prevent  judgment  being  entered  against 
him.'^ 

Under  the  Code  of  California,  defendant's  failure  to  obey  the 
order  of  the  Court,  requiring  him  to  answer,  renders  him  liable 
to  be  proceeded  against  for  contempt ;  but  a  judgment  by  de- 
fault does  not  follow.  A  judgment  so  taken  was  held  void  for 
the  want  of  jurisdiction.^^  The  general  rule  is,  that  where  the 
answer,  however  defective,  shows  that  the  garnishee  is  liable, 
judgment  may  be  rendered  against  him,  after  judgment  is  ob- 
tained against  defendant,  pro  confesso.^  And  where  there  is 
an  entire  failure  to  answer,  judgment  may  go  against  the  gar- 
nishee by  default.^^ 

15  Hackley  v.  Kanitz,  39  Mich.  398. 

16  Vertrees  v.  Hicks,  4  Baxt.  (Tenn.)  380. 
1^  Freeman  v.  Miller,  53  Tex.  373. 

18  Farley  v.  Bloodworth,  66  Ga.  349  ;  Hood  v.  Parker,  63  Ga.  510. 
13  Hibernia  etc.  See.  v.  Superior  Court,  56  Cal.  265. 

20  Bostwick  V.  Beach,  18  Ala.  80  ;  Mullen  v.  Maguire,  10  Phila.  435;  Gibbons 
V.  Cherry,  53  Md.  144. 

21  Freeman  v.  Miller,  53  Tex.  372. 


CHAPTER  XXVIII. 

ISSUES    ON  THE  ANSWER,  BETWEEN   PLAINTIFF 
AND    GARNISHEE. 

§  390.  General  nature  of  issues  to  be  tried. 

§  391.  Jurisdiction  of  tlie  subject  of  tbe  action. 

§  392,  Practice  and  pleading  to  raise  issues  on  answer. 

§  393.  Scope  of  inquiry  and  investigation. 

§  394.  Further  consideration  of  garnishee's  liability  to  defendant. 

§  395.  The  defense  of  exemption. 

§  396.  Evidence  on  the  trial  of  the  traverse. 

§  397.  Burden  of  proof. 

§  390.  General  Nature  of  Issues  to  be  Tried. — In  discussing 
the  answer,  reference  has  frequently  been  made  to  the  contest 
thereby  brouglit  on  between  the  plaintiff  and  the  garnishee.^ 
The  plaintiff  is  not  in  general  conclusively  bound  by  the  gen- 
eral answer,  or  by  the  answers  to  particular  interrogatories. 
When  it  comes  to  this  point  between  them,  the  first  and  third 
parties  in  the  case  occupy  towards  each  other  the  same  attitude 
as  opposing  litigants  in  an  ordinary  action. ^ 

The  controversy  between  them  may  take  the  form  of  issues 
of  law  or  issues  of  fact.  The  issues  of  law  arise  for  the  most 
part  on  exceptions  taken  to  the  answer  for  insufficiency,  or 
when  judgment  is  sought  on  its  admissions.  Issues  of  fact 
arise  when  the  truth  of  the  answer  is  directly  controverted  by 
the  plaintiff,  or  other  facts  are  alleged  by  plaintiff,  which,  if 
true,  would  defeat  the  conclusion  to  be  drawn  from  the  gar- 
nishee's statements.  The  manner  in  which  the  questions  in 
dispute,  whether  of  law  or  fact,  are  brought  to  an  issue,  will 

1  Ante,  Ch.  XXVTI. 

2  When  the  garnishee's  liability  is,  either  in  the  absence  of  a  traverse  or 
under  the  peculiar  provisions  of  a  statute,  to  be  determined  by  the  answer,  its 
allegations  and  denials  must  be  taken  as  true. — Clinton  Bank  v.  Bright,  126 
Mass.  535:  Tryon  v.  Merrill,  116  Mass.  299;  Fay  i'.  Sears,  111  Mass.  156;  Northam 
V.  Cart\vright,  10  R.  I.  20;  Bumham  v.  Dunn,  35  N.  H.  656;  Hawes  v.  Langton, 
8  Pick.  67. 


117  ISSUES   ON  THE   ANSWER.  §   390 

be  founcf  to  vary  according  to  the  practice  of  the  Courts  In 
the  different  States.  These  methods  are,  when  the  issue  is 
one  of  Law,  by  exceptions  to  the  answer  taken  by  the  plaintiff, 
or  a  motion  for  judgment,  or  demurrer  to  the  answer,  or  trav- 
erse of  the  answer.^  When  it  is  an  issue  of  fact,  by  simple 
denial  of  the  truth  of  the  answer ;  by  rule  against  the  gar- 
nishee, to  show  cause  why  he  should  not  be  charged ;  by  com- 
mencing an  action  against  the  garnishee,  or  pleading  to  the 
answer  as  in  any  other  suit,  and  going  to  trial  upon  the  issues 
made  by  the  pleadings.*  It  is  this  contest  between  garnishee 
and  plaintiff  that  calls  for  the  examination  of  the  garnishee  ; 
in  some  respects  it  Is  peculiar,  and  resembles  proceedings  sup- 
plementary to  execution  ;  in  other  features  It  Is  somewhat  like 
a  proceeding  in  the  nature  of  a  creditor's  bill  ;  but  In  most 
respects,  the  trial  is  similar  to  that  of  other  civil  actions  where 
facts  are  in  dispute.  The  Issues  raised  may  be  on  matters 
urged  In  bar  of  the  action,  or  they  may  only  go  to  Its  abate- 
ment. 

The  language  In  which  the  garnishee's  answer  Is  expressed 
may,  without  being  exposed  to  objection  for  Insufficiency,  em- 
brace Issues  of  both  law  and  fact.  As  where,  in  answer  to  the 
interrogatory  propounded,  he  answers  that  he  Is  not  Indebted 
to  the  defendant.  In  so  answering  he  may  draw  erroneous 
conclusions  of  law  from  facts  not  disclosed,  and  the  investiga- 
tion will  be  for  the  purpose  of  ascertaining  the  facts  upon 
which  lie  bases  his  denial.^  He  may  also  answer  as  to  facts, 
upon  Information  and  belief,  and  the  traverse  will  place  In 
Issue,  not  his  belief  In  the  facts  stated,  but  the  existence  of 
the  facts  themselves.  As  where  the  garnishee  admits  In  his 
answer  the  possession  of  property  received  from  the  defendant, 
but  adds  that  he  has  received  notice  from  another  person  that 
the  latter  had  purchased  It  from  defendant  prior  to  service  of 
summons.^     Should  the  plaintiff  fail  to  appear  and  contest  the 

8  Ante,  §  387. 

*  Ante,  §§  380,  381.  Id  some  of  the  States  tlie  proceeding  by  which  the  gcar- 
nishee  may  he  rendered  personally  liable,  is  scire  facias. — Sturtevant  v.  Eobin. 
son,  18  Pick.  175;  Twerdy  v.  Nichols,  27  Conn.  519;  Cunningham  v.  Hogan,  136 
Mass.  407;  JNIortland  v.  Little,  137  Mass.  339. 

5  Baxter  v.  M.  K.  &  T  R.  Co.,  67  Barb.  383. 

6  Sexton  V.  Amos,  39  Mich.  695. 


§    391  ISSUES    ON   THE   ANSWER.  118 

answer  where  it  denies  liability,  the  garnishment  will  be  at  an 
end,  and  cannot  be  revived,  so  as  to  affect  intervening  rights 
by  subsequent  appearance.''  Issues  of  law  may  arise  from  the 
garnishee's  answer  as  to  the  capacity  in  which  he  holds  defend- 
ant's property,  whether  as  trustee  or  otherwise.  So  when  the 
o-arnishee  is  called  upon  to  answer  interrogatories,  which  he  is 
advised  are  impertinent  or  irrelevant,  he  may  object  to  such 
interrogatory,  and  answer  or  not,  as  the  Court  may  decide 
that  it  is  pertinent  to  the  issues,  or  otherwise.^  When  the 
answer  sets  forth  that  the  property  or  fund  in  the  hands  of  the 
party  summoned  as  garnishee  has  been  transferred  by  defend- 
ant, the  validity  of  such  transfer  becomes  an  issue  between 
tlie  transferee  and  the  plaintiff,  which  may  or  may  not  be  tri- 
able in  the  proceeding  where  it  is  tendered,  depending  upon 
the  governing  statute.  In  some  of  the  States  the  assignee  or 
transferee,  upon  receiving  notice,  is  required  to  intervene.  In 
others  it  seems  that  he  may  leave  the  garnishee  to  contest  the 
matter  at  his  own  peril.  Issues  thus  raised  between  the 
plaintiff  and  strangers  to  the  proceeding  will  be  considered  in 
a  subsequent  chapter.^ 

§  391.  Jurisdiction  of  the  Subject  of  the  Action. — Whether 
the  Court  has  jurisdiction  to  hear  and  determine  the  issues  in- 
volved in  the  particular  controversy,  will  be  determined  by 
the  character  of  the  Court,  whether  superior  or  inferior,  of 
general  or  limited  jurisdiction,  the  amount  involved,  and  the 
residence  of  the  parties  and  the  situs  of  the  property.  When 
the  amount  involved  in  the  controversy  is  the  test  of  the 
Court's  power  to  try  the  case,  it  is  held  in  Michigan  that 
it  will  be  determined  by  the  amount  claimed  by  plaintiff  from 
defendant,  and  not  the  amount  of  the  garnishee's  indebtedness 
to  the  defendant,  or  the  value  of  defendant's  property  held  by 
him.-^*'  In  Illinois,  the  contrary  doctrine  is  laid  down.  It  is 
there  decided  that  the  County  Court  has  no  jurisdiction  where 
defendant's  claim  agrainst  garnishee  exceeds  the  amount  over 


7  Johnson  v.  Dexter,  38  Mich.  695. 

8  Sawyer  v.  Webb,  5  Iowa,  315 ;  Lyman  v.  Parker,  33  Me.  21. 

9  Post,  §  402. 

1"  Weatherwas  v.  Payne,  2  Micli.  555. 


119  ISSUES   ON  THE   ANSWER.  §    391 

wlilcli  it  has  jurisdiction,  though  the  judgment  against  de- 
fendant on  which  the  garnishment  is  based  is  less  than  this 
amount.  Tlie  reason  assigned  for  so  holding  is,  that  in  the 
garnishment  proceeding  tlie  defendant  in  attachment  is  the 
plaintiff,  and  the  matters  between  him  and  the  garnishee  con- 
stitute the  case,  and  the  amount  claimed  is  the  test  of  jurisdic- 
tion.^^ While  in  Kansas,  Justices  of  the  Peace  seem  to  have 
jurisdiction  of  a  restricted  kind,  unaffected  by  the  amount  in- 
volved either  between  plaintiff  and  defendant,  or  between  de- 
fendant and  the  garnishee.  But  the  Justice  cannot  under  this 
statute  render  a  final  judgment  in  the  case,  determining 
the  garnishee's  liability  to  defendant.  If  the  decision  is  against 
garnishee,  he  is  ordered  to  pay  the  money  into  Court,  and  if 
for  the  garnishee  is  for  costs.  The  object  of  the  statute  is 
merely  to  enable  plaintiff  to  dispute  the  garnishee's  answer  in 
a  summary  way,  without  resorting  to  a  formal  action. ^^  The 
jurisdiction  of  County  Courts  in  Mississippi  seems  to  be  limit- 
ed for  general  purposes  to  the  county  in  which  the  Court  is 
held.  But  the  statute  makes  jurisdiction  in  attachment  suits  de- 
pend not  on  the  residence  of  defendant,  as  in  ordinary  suits,  but 
on  the  presence  of  his  effects  against  which  the  attachment  may 
be  directed.  Hence  the  Court  of  the  county  of  garnishee's  resi- 
dence has  jurisdiction  of  attachment  against  a  householder  who 
resides  in  another  County,  to  whom  the  garnishee  is  indebted. ^'^ 
When  the  action  is  against  a  defendant  who  is  not  a  resident  of 
the  State,  the  manner  of  obtaining  jurisdiction  Is  the  same  as  tliat 
by  which  jurisdiction  of  the  person  is  obtained  In  case  of  direct 
levy.  The  important  matter  Is  to  find  tlie  garnishee,  and  the 
property  he  has  In  his  possession  witiiln  the  State.  There  is 
no  method  of  obtaining  constructive  jurisdiction  of  the  gar- 
nishee, though  there  may  be  of  the  defendant.  For  this  rea- 
son it  seems  almost  impossible  to  garnish  a  foreign  corporation, 
except  where  it  is  required  as  a  condition  to  its  doing  business 
in  the  State,  to  designate  -a  representative  upon  whom  process 
may  be  served.  In  New  York,  however,  it  is  held  that  where 
a  foreign  corporation  was  caiTying  on  business  in  that  State, 

11  Haines  v.  O'Connor,  5  111.  App.  213. 

12  Fitz  V.  Manhattan  Ins.  Co.,  23  Kan.  366. 

13  Smith  V.  Mulhern,  57  Miss.  591. 


§    S92  ISSUES    ON   THE   ANSWER.  120 

wliorc  several  of  Its  directors  resided,  its  stock  belonging  to  a 
non-resident  defendant  might  be  attached  as  though  it  had 
been  a  domestic  corporation.^^  But  in  general,  it  is  held  that 
foreign  corporations  cannot  be  summoned  as  garnishees,  for 
the  reason  that  they  are  not  migratory.  Their  only  place  of 
residence  is  in  the  States  where  they  are  organized,  and  this 
cannot  be  affected  by  the  change  of  domicile  of  the  officers 
or  dii'ectors.  The  only  way  in  which  they  can  be  brought 
within  reach  of  process  in  other  States  is  by  voluntary  submis- 
sion to  the  foreign  jurisdiction,  and  this  submission  may  be  en- 
forced as  a  statutory  condition  to  their  extending  their  busi- 
ness into  a  foreign  State. ^^ 

§  392.  Practice  and  Pleading  to  raise  Issues  on  Answer. 
— As  already  stated,  there  are  several  methods  of  traversing 
the  answer  of  the  garnishee.  In  Missouri,  the  pleadings  are 
much  the  same  as  the  written  altercations  in  an  ordinary  suit. 
The  answer  is  met  by  a  replication,  and  when  this  presents  Is- 
sues of  fact,  the  burden  of  proof  rests  where  it  would  on  the 
coming  in  of  ilie  final  pleading.  In  case  of  any  disputed  ques- 
tion.^ Eut  where  no  reply  was  filed,  and  no  default  being 
asked,  the  parties  proceeded  to  the  trial  of  the  issues  made  by 
an  agreed  statement.  It  was  held  too  late  in  the  appellate  Court 
to  object  that  no  issues  were  raised  by  the  pleadings.-  In  Penn- 
sylvania, the  garnishee  may  be  proceeded  against  by  the  cred- 
itor who  disputes  the  answer,  by  scire  facias,  and  it  seems  that, 
subject  to  the  discretion  of  the  Court,  the  plaintiff  may  be  di- 
rected to  issue  this  writ  on  application  of  the  garnishee  him- 
self.^ In  Kansas,  and  some  other  States,  the  plaintiff  in  at- 
tachment, when  he  finds  the  answer  unsatisfactory,  proceeds 
to  bring  an  action  against  the  garnishee,  after  giving  notice 
that  he  is  not  satisfied  with  the  answer.  The  particulars  in 
which  the  answer  Is  defective  or  objectionable  are  alleged   as 

w  Plimpton  v.  Bigelow,  26  Hun.  3G2;  12  Abb.  N.  Cas.  202. 
15  Ante,  §  343. 

1  Frank  v.  Frank,  0  Mo.  App.  588  ;  Union  Bank  v.  Dillon,  75  Mo.  380. 
5  Frank  v.  Frank,  G  Mo.  A]ip.  588.    Plaintiff  may  dismiss  proceedings  after 
answer  denying  Indebtedness,  though  the  garnishee  objects.  -  Griel  i'.  Loftin, 
eS  Ala.  591. 

3  Finch  V.  Bullock,  10  Phila.  318. 


121  ISSUES    ON   THE   ANSWER.  §   392 

the  gist  of  the  new  action.  It  was  held  that  this  right  of  ac- 
tion was  not  barred  by  the  fact  that  plaintiff,  without  giving 
notice  that  the  answer  was  unsatisfactory,  procured  an  order 
of  Court  for  the  payment  of  the  money,  and  brought  his  action 
on  such  order,  which  action  he  subsequently  dismissed.*  In 
the  same  State  it  is  held,  that  before  a  justice  of  the  peace 
where  an  interlocutory  judgment  may  be  had  on  the  answer, 
no  pleadings  are  necessary  except  the  affidavit  in  attachment, 
th3  answer  of  the  garnishee,  and  the  notice  that  the  answer  is 
unsatisfactory.  Upon  the  issues  thus  made,  the  truth  of  the 
statements  in  the  answer  may  be  tried.^ 

But  the  jilaintiff  cannot  make  an  issue  on  the  truth  of  tlie 
answer,  without  in  some  form  or  other  traversing  its  state- 
ments. Consequently,  where  the  answer  disclosed  that  gar- 
nishees were  non-residents  of  the  State,  which  was  sufficient  to 
entitle  them  to  a  discharge,  and  other  claimants  moved  to  dis- 
charge them  on  this  ground,  it  was  held  that  plaintiff,  by  go- 
ing to  a  hearing  without  objection,  on  this  motion,  waived  his 
right  to  contest  the  truth  of  the  disclosure,  and  would  not  be 
heard  to  allege  error  in  the  finding  of  the  Court  that  such  dis- 
closure was  true  as  to  non-residence.^ 

Where  a  single  pleading  was  filed  controverting  the  answers 
of  two  garnishees,  and  on  motion  one  of  the  garnishees  was 
discharged,  as  improperly  joined  in  such  pleading,  the  plaintiff 
was  allowed  to  file  a  further  pleading,  taking  issue  on  the  an- 
swer of  such  garnishee. '^ 

The  traverse  of  the  answer,  when  it  is  a  paper  filed  in  the 
same  proceeding,  seems  to  be,  like  other  pleadings  and 
subject  to  similar  restrictions,  amendable  by  leave  of  Court. 
Where  the  answer  denied  indebtedness,  and  the  traverse  al- 
leged an  indebtedness  of  five  hundred  dollars,  but  was  subse- 
quently amended  by  setting  out  a  complicated  state  of  facts 
showing  other  indebtedness,  it  was  held  that  the  Court  erred, 
on  sustaining  a  demurrer  to  such  amendment,  in  striking  out 
the  whole  traverse  and  giving  judgment  for  the  garnishee.^ 

4  Exchange  Bank  v.  Gulick,  24  Kan.  359. 
6 Fitch  V.  Manhattan  Ins.  Co.,  23  Kan.  366 
ePtindge  r.  Green,  52  Yt.  204. 
'  Coffman  v.  Ford,  56  Iowa,  185. 
8  Bates  V.  Forsyth,  C4  Ga.  232. 


§    393  ISSUES    ON   THE   ANSWER.  122 

The  jrarnishee  must  be  entitled  to  some  form  of  notification 
from  the  plainti£E  as  to  the  extent  of  the  controversy  between 
them.  But  it  is  held  that  a  bill  of  particulars  of  what  is  to  be 
established  against  the  garnishee,  is  not  a  matter  of  right,  es- 
pecially where  he  has  made  disclosure  of  effects  or  ci'edits  in 
his  hands,  which  belong  to  defendant.^  Under  the  provis- 
ions of  the  Wisconsin  statute,-^"  that  the  garnishment  pro- 
ceeding shall  be  deemed  an  action  by  plaintiff  against  the 
garnishee,  and  be  governed  by  the  laws  applicable  to  civil  ac- 
tions at  issue,  the  Court,  even  before  issue  joined  on  gar- 
nishee's answer,  may  require  him  to  make  it  more  definite  and 
certain,  by  furnishing  a  copy  of  the  contract  set  up  in  such  an- 
swer.^^ 

In  Alabama  the  practice  is  somewhat  peculiar,  where  the 
answer  discloses  a  future  indebtedness.  The  Court  may  grant 
a  continuance  for  further  answer.^^ 

§  393.  Scopfr  of  Inquiry  and  Investigation. — The  object  of 
the  traverse  is  to  establish  a  state  of  facts  inconsistent  with 
those  alleged  in  the  answer,  that  being  inconsistent  with  plain- 
tiff's right  to  a  judgment  against  the  garnishee.  Whatever  is 
contradictory  of  the  truth  of  the  answer,  either  in  denial  of 
its  affirmative  statements,  or  aflSrmative  of  matters  therein  de- 
nied, is  pertinent  to  the  issue.  The  creditor  is  not  bound  by 
the  statements  of  the  garnishee,  and  may  pursue  the  property, 
subject  to  its  burdens,  if  any,  when  he  is  satisfied,  notwith- 
standing the  answer,  that  it  is  in  the  possession  of  the  gar- 
nishee.^ But  a  refusal  to  give  the  statutory  "  certificate  "  re- 
quired in  New  York,  even  where  the  party  summoned  denies 
his  possession  of  property  of  defendant,  warrants  in  order  of 
examination.  On  such  examination,  the  garnishee  may  state 
the  character  in  which  he  holds  the  money  in  question,  the 

9  Strong  V.  Hallon,  39  Mich.  411. 

10  R.  S.,  §  276G. 

11  Lusk  V.  Galloway,  52  Wis.  164.  After  plaintiff  submits  matter  for  deci- 
Bion  on  disclosure,  and  the  Court  decides,  it  is  too  late  for  him  to  ask  leave  to 
file  a  supplemental  complaint.  Framing  of  issues  in  garnishment,  other  than 
liy  supplemental  complaint,  is  not  a  matter  of  right,  and  if  allowed  at  all,  is 
discretionary  with  the  Court. — Mahoney  v.  McLean,  28  Minn.  63. 

12  Security  etc.  Ass'n  i'.  Weems,  69  Ala.  584. 
1  Baxter  v.  M.  K.  &  T.  K.  Co.,  67  Barb.  283. 


123  ISSUES   ON   THE   ANSWEE,  §    S&S 

manner  in  which  It  was  obtained,  and  the  object  of  gathering* 
it  togethei' :  here,  it  is  held,  the  examination  should  stop.^ 
The  indebtedness  of  defendant  to  plaintiff  is  not  one  of  the 
issues  that  arise  between  plaintiff  and  garnishee,  though  the 
validity  of  the  judgment  against  the  latter  must  ultimately  de- 
pend upon  the  judgment  obtained  against  the  principal  de- 
fendant.'^ Certainly,  after  defendant  has  confessed  judgment, 
or  judgment  has  been  regularly  entered  against  him,  the  gar- 
nishee will  not  be  heard,  in  addition  to  his  denial  of  havino;  in 
his  possession  attachable  effects  or  credits  of  defendant,  to 
deny  that  defendant  is  indebted  to  plaintiff.  It  is  held  that, 
under  such  circumstances,  he  can  not  plead  that  prior  to  ser- 
vice of  summons  upon  himself,  a  receiver  had  been  appointed 
in  another  State,  and  that  thereby  his  indebtedness  was  trans- 
ferred to  such  receiver ;  that  evidence  of  the  defendant's  in- 
solvency, and  that  no  debt  was  due  to  plaintiff,  or  from  gar- 
nishee to  defendant,  was  inadmissible  ;  also,  that  garnishee  was 
not  in  a  position  to  deny  the  corporate  existence  of  the  princi- 
pal defendant.* 

When  the  garnishee  himself  claims  to  own  the  jiroperty  by 
virtue  of  an  assignment,  or  transfer  of  interest  previous  to  ser- 
vice of  process,  the  question  of  the  validity  of  such  transfer  is 
one  that  may  arise  on  the  trial  of  the  traverse.  But  the  rul- 
ings are  not  altogether  harmonious  as  to  whether  such  trans- 
fers may  be  Impeached  as  fraudulent  on  a  traverse  of  the  an- 
swer. In  some  of  the  States,  it  is  held  that  this  is  a  leglti- 
mate  method  of  attacking  fraudulent  sales  of  personalty.^ 
While  in  others  it  is  held,  that  the  validity  of  a  garnishee's 
title  to  property  in  his  possession,  of  which  he  claims 
the  ownership,  cannot  be  passed  on  in  a  rule  taken  to  trav- 
erse the  answer.  Such  an  issue  can  only  be  passed  upon 
in  a  direct  suit  brought  to  test  the  sufficiency  of  the  title.^ 
There  is  no  principle  involved  in  the  question,  whether 
the   validity   of   garnishee's   title    shall   be    inquired  into    in 

2  Baxter  v.  M.  K.  &  T.  R.  Co.,  67  Barb,  283. 

8  Post,  Ch.  XLIII.      . 

*  Bartlett  v.  Wilbur,  53  Md.  485. 

6  Cummiugs  v.  Feary,  44  Mich.  39;  Lamb  v.  Stone,  11  Pick.  527. 

6  Ivens  V.  Ivens,  30  La.  An.,  Ft.  I.  249;  Battles  v.  Simmons,  21  La.  An.  416. 


§    394  ISSUES    ON  THE   ANSWER.  124 

tlie  trial  of  the  traverse  or  not.  It  is  a  mere  question  of 
local  practice,  and  where  not  governed  by  statute,  should  be 
settled  upon  the  basis  of  convenience  to  the  parties  and  the 
Court,  as  to  the  means  most  available  and  least  expensive  for 
determining  conflicting  rights.  Aside  from  this  question  of 
fraudulent  assignment  or  release  of  indebtedness,  the  right  of 
the  plaintiff  to  judgment  against  the  garnishee  must  turn  u[)on 
the  validity  of  defendant's  demand  against  the  latter.  Choses 
in  action  in  the  hands  of  the  garnishee  must  be  due  and  owinsf 
to  the  defendant  in  general  ;  must  be  of  a  legal,  and  not  a 
merely  equitable  character.  It  is  held  that  where  judgment 
is  recovered  by  A  for  the  use  of  B,  against  C,  the  latter  can- 
not be  garnished  by  a  creditor  of  B,  for  the  reason  that  the 
legal  title  to  the  judgment  is  not  in  the  defendant."  The  the- 
ory upon  which  the  judgment  is  sought  and  rendered  against 
the  garnishee  is,  that  it  is  in  favor  of  the  attachment  or  judg- 
ment debtor,  for  the  use  and  benefit  of  the  attachment  or  judg- 
ment creditor.  Whatever  surplus  there  may  be  after  satisfy* 
ing  the  claim  of  the  beneficiary,  belongs  to  the  debtor  in  whose 
name  the  garnishment  proceeding  is  prosecuted.^  Whether 
the  form  of  the  proceeding  is  governed  by  this  theory,  as  it 
seems  to  be  in  Illinois,  or  not,  the  principle  governing  it  is  the 
same,  in  so  far  as  it  places  stress  upon  the  relations  existing 
between  the  principal  defendant  and  the  garnishee,  as  the 
most  important  matter  of  inquiry  when  the  contest  is  on  the 
garnishee's  answer. 

§  394,  Further  Consideration  of  Grarnishee's  Liability  to 
Defendant.- -If  the  indebtedness  of  garnishee  is  contingent,  or 
subject  to  any  defeasance,  whether  by  the  acts  of  the  garnishee 
or  a  third  person,  it  is  a  proper  matter  of  inquiry  whether  the 
contingency  has  happened  which  was  to  render  the  indebted- 
ness absolute,  or  the  event  has  transpired  which  would  defeat 
the  right  of  action.  Thus,  where  the  answer  disclosed  a  con- 
tract by  which  the  garnishee  received  a  deed  for  land,  for 
which  he  gave  in  return  two  notes  to  the  principal  defendant, 
the  contract  being  conditional,  and  dependent  upon  the  sanc- 

■^  Webster  V.  Steele,  75  111.  544;  111.  Cent.  R.  Co.  v.  Weaver,  54  lU.  319. 
8  Webster  v.  Steele,  75  111.  544. 


125  ISSUES    ON   TOE   ANSWEE.  §   Sd-i 

turn  of  a  son  of  the  garnishee.  The  son  refused  his  sanction, 
and  tlie  deed  was  returned,  one  note  given  up,  and  a  promise 
made  to  surrender  the  other.  This  was  held  sufficient  to  ex- 
empt the  garnishee  from  liability,  as  he  could  not  have  been 
held  by  the  defendant  in  the  action.^ 

So  where,  by  the  terms  of  a  policy  of  insurance,  the  insur- 
ance company  had  a  right  to  rebuild  the  house  destroyed  in 
case  of  loss,  instead  of  paying  the  amount  of  a  loss,  the  com- 
pany would  not  be  chargeable  as  garnishee  of  the  assured. 
And  the  fact  that  after  the  service  of  process  it  makes  ar- 
rangements with  the  assured  and  one  of  his  creditors,  by  which 
the  money  is  paid  to  the  creditor,  who  by  agreement  erects  a 
building  on  his  own  land  satisfactory  to  the  assured,  is  immate- 
rial, and  cannot  be  used  as  evidence  to  support  a  traverse  of 
the  answer  of  the  company  denying  indebtedness  to  the  as- 
sured.^ So  also  where  the  garnishee's  indebtedness  was  con- 
tingent, and  payable  when  due,  by  drafts  payable  to  tlie  gar- 
nishee, and  by  him  indorsed  to  the  defendant,  the  garnishee 
will  not  be  chargeable.  And  it  was  held  in  such  a  case  that 
he  could  not  be  charged,  even  if  he  had  received  the  drafts 
which  he  Avas  to  pay  defendant.^ 

Where  the  garnishee  is  summoned  on  account  of  a  debt  due 
from  him  to  the  defendant  on  demand,  the  plaintiff  cannot  have 
judgment  against  the  garnishee,  as  for  a  debt  due,  upon  bare 
proof  or  admission  of  the  existence  of  the  debt,  without  proof 
of  the  demand,  as  this  is  the  contingency  upon  which  it  is  to 
become  due.  And  where  one  to  whom  a  debtor  conveyed  an 
interest  in  realty,  as  part  of  the  consideration,  agreed  to  j^ay  a 
note  and  mortgage  thereon,  the  note  being  payable  on  demand, 
the  mere  fact  that  the  note  had  run  two  years  and  nothing  had 
been  paid  thereon  since  the  conveyance,  was  not  sufficient  to 
render  the  debtor  of  the  debtor  liable  to  garnishment  in  an  ac- 
tion against  his  creditor,  when  no  demand  hud  been  made  by 
the  holder  of  the  note  for  payment.'*  Even  where  the  question 
of  the  fraudulency  of  an  assignment  disclosed  by  the  answer 

iBell  V.  Jones,  17  N.  H.  307. 
2  Godfrey  v.  Macomber,  128  Mass.  18S. 
8Larrabee  v.  Walker,  71  Me.  441. 
4 Elmer  v.  Welch,  47  Conn.  56. 


§   395  ISSUES   ON  THE   ANSWER.  126 

may  be  brought  to  an  issue  on  a  traverse,  it  should  be  on 
the  ground  that  the  fraud  was  perpetrated  upon  the  creditor 
M'lio  coraphxins  of  it,  as  well  as  upon  others.  Thus,  a  cred- 
itor having  agreed  with  a  third  person,  in  consideration  of  a 
sum  paid  to  him,  to  relinquish  all  claim  on  a  policy  of  insur- 
ance previously  assigned  by  the  debtor  to  such  third  person, 
and  having  consented  to  payment  of  the  policy  by  the  Insurance 
Company  to  the  assignee,  it  was  held  that  such  creditor  could 
not  recover  of  the  assignee  as  garnishee,  any  part  of  the  money 
so  paid  on  the  policy,  on  the  ground  that  the  assignment  was 
fraudulent  and  void  as  to  other  creditors  of  the  assignor.^ 

§  395.  The  Defense  of  Exemption. —  The  debtor  may  set 
up  as  a  reason  wliy  he  should  not  be  charged  as  garnishee, 
that  the  property  or  funds  in  his  hands  is  exempt  under  the 
statute  from  execution  or  attachment.  This  may  be  met  on 
the  traverse  by  the  reply  that  the  property  in  his  hands  was, 
as  to  creditors,  fraudulently  obtained.  And  it  is  held  that 
where  this  can  be  shown  it  will  defeat  the  claim,  as  the  ex- 
emption law  does  not  apply  where  the  property  in  question 
was  thus  obtained.^  The  exemption  may  also  be  claimed  by  the 
principal  defendant,  or  judgment  debtor,  against  whom  the 
garnishment  issues.  But  he  should  claim  it  before  the  issues 
on  the  answer  are  determined  and  judgment  rendered  against 
the  garnishee;  otherwise  his  exemption  will  be  lost.  After 
such  judgment,  an  order  of  Court  requiring  the  sheriff  to 
pay  over  the  money  collected  thereon  to  the  principal  judg- 
ment debtor,  on  his  claim  of  exemption,  was  held  void."  In  the 
action  by  plaintiff  against  the  garnishee,  on  account  of  alleged 
untruth  or  insufficiency  of  the  answer,  the  principal  defendant 
is  held  in  Ohio  to  be  a  proper  party,  and  should  be  allowed  to 
appear  for  the  purpose  of  claiming  exemption.  And  where 
the  statute  allows  the  debtor  to  claim  and  hold  exemj)t,  in  ad- 
dition to  specific  chattels  already  selected,  personal  property 
not  exceeding  three  hundred  dollars  in  value,  the  term  "  per- 
sonal property,"  construed  in  connection  with  other  statutes 

6  Turner  v.  Burnell,  48  Wis.  221. 

1  Cummings  r.  Fearey,  44  Mich.  39. 

2  Eandolph  v.  Little,  62  Ala.  39a. 


127  ISSUES    ON   THE   ANSWER.  §    395 

In  pari  jnaferia,  is  held  to  include  credits  and  moneys  selected  by 
the  debtor,  and  when  so  selected,  such  credits  and  moneys  can- 
not be  taken  under  attachment  or  garnishment.^  But  the  de- 
fendant's claim  of  exemption  does  not  raise  an  issue  on  the  an- 
swer, unless,  as  may  be  the  case,  such  claim  is  set  up  by  the 
garnishee.^  Thus,  where  the  garnishee  is  indebted  to  the  de- 
fendant for  wages,  and  the  statute  limits  the  exemption  to  a 
specified  amount,  or  to  such  wages  as  are  earned  within  a  par- 
ticular period  next  preceding  the  garnishment,  it  becomes  the 
duty  of  the  employer  to  answer  fully  as  to  the  facts  control- 
ing  the  rights  of  the  principal  debtor.^  Consequently,  these 
facts  with  others,  if  controverted  by  the  plaintiff,  must  nec- 
essarily be  established  on  the  trial  of  the  traverse.  i3o,  too, 
when  the  facts  are  undisputed  and  indisputable,  their  suffic- 
iency to  amount  to  a  valid  exemption  may  be  placed  in  issue 
between  the  plaintiff  and  the  garnishee.  And  when  the  ques- 
tion of  exemption  arises  as  an  issue  of  law  between  the  j^ar- 
tles,  the  question  whether  the  statute  ajiplies  to  the  particular 
claim  will  generally  be  determined  by  the  date  of  the  contract 
under  which  it  is  claimed,  and  the  statute  at  that  time  in  force. 
It  is  not  an  invariable  rule,  however,  that  the  exemption  can 
only  be  claimed  under  the  law  as  it  existed  at  the  date  of  the 
contract,  for  the  reason  that  the  exemption  only  affects  the 
remedy .*"  But  where  the  statute  in  force  when  the  exemption 
is  claimed  is  not  expressly  retroactive,  it  will  not  be  construed 
as  affecting  the  right  of  the  claimant,  which  the  prior  act  gave 
when  the  contract  was  made  or  the  debt  contracted.''  Even 
where  the  subject  of  legislative  action  is  one  which  may  be  af- 
fected by  a  statute  that  operates  retrospectively,  without  vio- 
lating any  constitutional  inhibition  of  laws  that  impair  the  ob- 
ligation of  contracts,  or  devest  vested  i-ights,  the  statute  will 

3  Cliilcote  V.  Conley,  36  Ohio  St.  545. 

^  Uraiuard  v.  Shannon,  60  Me.  342;  Mineral  Point  R.  Co.  v.  Barron,  83  111 
305;  Chicago  &  Alton  E,.  Co.  v.  Rayland,  81  111.  375. 

5  Mineral  Point  R.  Co.  v.  Barron,  83  111.  365;  Rischert  v.  Kuntz,  9  Mo.  App. 
283.  "Wages  of  seamen  on  coasting  voyage  on  the  Atlantic  are  attachable  in 
Massachusetts.— Wliite  v.  Dunn,  134  Mass.  271.  Jurors'  fees  are  attachable  in 
New  Hampshire.— Wardville  v.  Jones,  53  N.  H.  305. 

6  Garrett ;).  Cheshire,  6.)  N.  C.  396;  12  Am.  Rep.  047. 

'  Moore  v.  McConn,  G4  Ga.  617;  Homestead  Cases,  22  Gratt.  266;  12  Am.  Rep 
507. 


§    396  ISSUES    ox   THE    ANSWER.  128 

not  be  construed  as  taking  effect  upon  past  transactions,  unless 
its  retroactive  operation  is  clearly  expressed.^  The  intent  to 
give  tlie  lavv  retroactive  operation  cannot  be  gathered  from 
general  words  of  tlie  statute,  and  when  this  construction  is  ar- 
rived  at  by  implication,  it  must  be  where  such  interpretation 
is  necessary  to  give  effect  to  the  act  of  the  legislature.^  The 
rule  applies  with  equal,  if  not  greater  uniformity,  where  the 
exemption  is  claimed  under  a  statute  which  was  not  in  force 
when  the  contract  was  made  or  the  debt  contr acted. ^'^ 

Whether  the  exemption  is  claimed  by  the  garnishee,  or  is 
set  up  in  behalf  of  the  defendant  or  judgment  debtor,  it  can 
only  be  claimed  under  the  law  of  the  State  where  the  action 
or  proceeding  Is  pending.  Such  statutes  which  only  affect  the 
remedy  have  no  extra-territorial  force. ^^  Where  the  exemption 
is  of  wages,  it  is  confined  to  the  wages  due  the  person  claiming 
the  exemption  for  his  own  labor,  and  not  for  that  due  for  the 
labor  of  other  men,  or  for  any  other  matters  of  contract  with 
which  the  amount  due  for  wages  is  indlstinguishably  mingled. ^^ 

§  396.  Evidence  on  the  Trial  of  the  Traverse. — Generally 
speaking,  the  rules  of  evidence  that  govern  trials  of  disputed 
fact,  apply  on  the  trial  of  the  traverse  of  the  answer.  As  to 
whether  the  general  answer  may  be  used  as  evidence  on  be- 
half of  the  garnishee,  when  its  truth  is  controverted,  the  au- 
thorities are  not  altosrether  harmonious.  In  Illinois,  the  answer 
goes  to  the  jury  as  evidence  for  what  it  is  worth. ^  While  in 
Missouri  it  is  held,  that  in  such  contests  it  figures  as  evidence 
only  to  the  same  extent  as  a  pleading  in  an  action  brought  by 

*  Ambsbry  v.  Hinds,  48  N.  Y.  57;  Price  v.  Mott,  52  Pa.  St.  315;  Abington  v. 
Duxbury,  103  Mass.  287;  Parsons  «.  Paine,  26  Ark.  124;  State  v.  Norwood,  12 
Md.  195;  Williarr.  Baltimore  etc.  Ass' n,  45  Md.54(J;  State  w.  Crawford,  11  Kan. 
32;  In  re  Fuller,  79  111.  99;  United  States  v.  Arredondo,  G  Pet.  691;  Finney  v. 
Ackerman,  21  Wis.  268;  Williamsons.  New  Jersey  etc.  R.  Co.,  29  N.  J.  Eq.  311. 
Jordon  v.  Gower,  57  Tenn.  103. 

9  United  States  v.  Heth,3  Crancli,399;  Williamsons.  New  Jersey  etc.  R.  Co., 
29  N.  J.  Eq.  311;  City  of  Elizabeth  v.  Hill,  .39  N.  J.  L.  555. 

w  Homestead  Cases,  22  Gratt.  266;  12  Am.  Rep.  507. 

11  Leiber  v.  U.  P.  R.  Co.,  49  Iowa,  688;  Bolton  ?j.  Penn.  Co.,  88  Pa.  St.  261; 
Morgan  v.  Neville,  24  P.  F.  Smith,  52;  Chicago  &  Alton  R.  Co.  v.  Ragland,  84 
111.  375 

12  Brainard  v.  Shannon  60  Me.  342. 
1  Schwab  V.  Gingerick,  13  111.  697. 


129  ISSUES    ON   THE   AXSWER.    '  §    896 

ordinary  process.^  In  Alabama  the  answer  may  be  introduced 
in  evidence  by  the  plaintiff,  but  not  by  the  garnishee.  But 
when  so  introduced,  it  is  held  that  the  party  so  using  it  Is  so 
far  bound  by  its  statements  -that  he  cannot  introduce  evidence 
to  discredit  theni.^  In  Wisconsin,  the  Court  also  inclines  to 
the  view  that  the  answer  should  not  be  admitted  in  evidence 
between  the  plaintiff  and  the  garnishee,  where  the  truth  of  the 
answer  is  in  issue.* 

In  Pennsylvania  it  is  lield  that  the  plaintiff,  when  offering 
the  answer  as  evidence,  is  not  necessarily  bound  by  its  recitals, 
but  may  contradict  them  by  evidence  tending  to  show  that  the 
garnishee  has  made  different  statements.'^  And  in  Wisconsin, 
that  the  plaintiff  may  read  in  evidence  one  part  of  the  answer 
as  evidence  in  his  own  behalf,  while  he  controverts  the  re- 
mainder.^ The  rule  laid  down  in  IMaryland  is,  that  while  the 
answer  may  be  offered  in  evidence  by  either  party,  when  so  of- 
fered by  the  garnishee,  the  whole  of  it,  as  well  that  which 
charges  as  that  which  discharges,  should  be  read.'^ 

We  have  already  shown  the  extent  to  which  the  answer  is 
to  be  taken  as  true.^  In  this  respect  it  occupies  more  the  po- 
sition of  a  pleading  than  that  of  a  means  of  })roof  of  disputed 
facts.  Until  the  general  answer  is  controverted  by  the  plain- 
tiff, it  stands  as  true,  for  the  obvious  reason  that  it  constitutes 
all  the  evidence  upon  the  matter  in  issue  which  has  been  in- 
troduced up  to  that  point.  It  is  after  the  answer  has  been  for- 
mally put  in  issue  that  evidence  becomes  necessary  to  support 
it,  or  may  be  regarded  as  pertinent  to  overcome  the  presump- 
tions in  its  favor.  The  answers  to  interrogatories,  when  re- 
sponsive, have  been  held  admissible  as  evidence,  and  in  so  far 
as  they  showed  the  garnishee  entitled  to  a  discharge,  would 
stand  until  satisfactorily  rebutted.^   The  garnishee's  answer  ia 

2  Davis  V.  Knapp,  8  Mo.  657 ;  McEroy  v.  Lane,  9  Mo.  48;  Smith  v.  Heidecker, 
39  Mo.  1.57. 

3  Price  V.  Mazouge,  31  Ala.  701. 

4  Keep  V.  Anderson,  12  Wis.  352.  Seealso  Lasky  v.  Sisloff,  7  How.  Miss.  157  j 
Dawkins  v.  Gault,  5  Rich.  L.  151;  Gushing  v.  Laird,  6  Benediet,  408. 

5  Adlum  V.  Yard,  1  Rawle,  1G3;  18  Am.  Dec.  G08. 

6  Prentiss  v.  Danaber,  20  Wis.  311. 
'  Devries  v.  P.uchanan,  10  Md.  210. 
8  Ante,  §  380. 

»  Britt  t'.  Bradshaw,  18  Ark.  530;   Erskine  VrSanjjston,  7  Watts,  150;   Helm© 
n.  Attach.— 9. 


§    396  ISSUES   ON  THE   ANSWER.  130 

tinother  suit,  in  which  he  admitted  notice  of  an  assignment,  is 
admissible  for  tlie  purpose  of  proving  such  notice,  when  that 
is  the  matter  in  issue. ^°  The  record  in  the  principal  case  is 
admissible  in  evidence,  whether  the  garnishment  be  in  attach- 
ment or  in  aid  of  an  execution,  when  any  matter  that  such  rec- 
ord will  show  is  in  dispute. ^^  When  the  issue  embraces  the 
question  of  the  fraudulency  of  garnishee's  transactions  with 
defendant,  the  entire  history  of  such  transactions  may  be  in- 
quired into.^^  Evidence  of  the  fact  that  a  claimant  under  as- 
signment knew  of  plaintiff 's  claim  against  the  defendant,  and 
that  he  was  seeking  to  hold  the  fund  in  the  garnishee's  hands, 
was  held  admissible  on  the  issue  of  the  good  faith  of  the  as- 
signment.^^ The  matter  of  payment,  where  the  property  is  al- 
leged to  have  been  bargained  for  in  good  faith,  is  also  a 
proper  subject  of  investigation ;  for  where  there  has  been  no 
payment  made  by  one  who  purchased  without  notice  of  the 
fraudulent  intent  of  the  vendor,  his  title  will  not  be  good  as 
against  a  creditor  of  the  vendor.^*  Where  jilaintiff  contested 
the  answer  on  the  ground  that  the  sale  therein  set  up  was 
fraudulent,  it  was  held  that  the  garnishee  could  not,  In  rebuttal 
of  evidence  tending  to  show  such  fraud,  introduce  evidence 
of  her  good  character. ^^  Independent  of  this  question  of  fraud, 
or  of  an  established  conspiracy  between  the  defendant  and 
garnishee,  the  declarations  of  the  former  cannot  be  offered  in 
evidence  against  the  latter,  when  the  truth  of  the  answer  is  in 
issue-  between  the  garnishee  and  the  plaintiff.^^  But  where 
the  contradictory  declarations  have  been  made  by  the  gar- 
nishee himself,  they  may  be  offered  by  the  plaintiff,  with  such 
effect  as  the  peculiar  circumstances  of  the  case  would  seem  to 
warrant.  Where  the  garnishee,  by  previous  admissions,  has 
led  the  plaintiff  to  believe  that  he  was  indebted  to  the  defend- 

V.  Pollard,  14  La.  An.  306;  McEvoy  v.  Lane,  9  Mo.  47;  Mason  v.  McCampbell, 
2  Ark.  506;  Holton  v.  South  Pac.  E.  Co.,  50  Mo.  151. 

10  Bartlett  v.  AVilbur,  53  Md.  485. 

11  Bushnell  r.  Allen,  48  Wis.  460. 

^  Cummingsr.  Fearey,  44  Mich.  39;  Devall  v.  Brownell,  5  Pick.  448;  Fearey 
0.  Cummings,  41  Mich.  376. 
13  Sullivan  r.  Langley,  124  Mass.  264. 
i-»  Dixon  )'.  Hill,  5  Mich.  404. 

15  Dawkins  v.  Gault,  5  Pdch.  L.  151. 

16  Gaboon  v.  Ellis,  18  Yt.  500. 


101  ISSUES    ON   THE   ANSWER.  §    397 

ant,  such  admissions  may  not  estop  the  garnishee  from  deny- 
ing indebtedness  in  his  answer ;'"  but  it  is  difficult  to  sec  how, 
unless  it  be  under  exceptional  circumstances,  such  contrariety 
of  statement  can  fail  to  discredit  the  answer. 

§  397.  Burden  of  Proof. — From  what  has  already  been 
stated  as  to  the  answer  being  taken  as  true/  it  follows  that  in 
traversing  its  allegations  and  denials,  the  plaintiff  assumes  the 
burden  of  proof.  Where  the  answer  denies  all  indebtedness, 
and  the  plaintiff  takes  issue  upon  this  fact,  he  must  disprove 
such  denial  before  he  can  recover  in  the  proceeding. ^  When 
the  answer  sets  up  such  affirmative  matter  as  that  the  amount 
of  his  indebtedness  to  the  principal  defendant  is  due  for  wages 
which  are  exempt,  or  that  the  amount  originally  due  from  him 
to  defendant  was  transferred  prior  to  service  of  summons ;  or 
that  he  has  a  set-off  to  such  indebtedness  ;  and  these  facts  are 
put  in  issue  either  by  direct  contradiction,  or  the  statement 
of  new  matter  in  avoidance  of  the  effect  of  such  statements, 
the  plaintiff,  to  be  entitled  to  judgment  against  the  garnishee, 
will  in  general  be  required  to  disprove  them  by  a  preponder- 
ance of  evidence.  And  this  burden  cannot  be  supported,  where 
it  is  sought  to  charge  a  corporation  as  garnishee,  by  showing 
acts  of  one  of  its  officers,  done  not  for  the  benefit  of  the  corpo- 
ration, or  Avithin  the  scope  of  his  official  duties  and  powers. 
Thus,  where  the  secretai-y  of  a  corporation  received  from  the 
payee  the  company's  check  drawn  in  favor  of  its  creditor,  and 
collected  the  money,  but  instead  of  paying  it  to  the  proper 
party,  paid  it  to  the  creditor  of  the  payee,  it  was  held  that 
this  did  not  tend  to  reestablish  the  relation  of  debtor  and  cred- 
itor between  the  corporation  and  the  payee  of  the  check,  nor 
render  it  liable  to  judgment  as  garnishee  in  an  action  against 
such  party .^ 

Where  it  appeared  from  plaintiff's  evidence  that  the  gar- 

1'  Lewis  V.  Prenatt,  24  Ind.  98. 

1  Ante,  §  380. 

2  Pdppen  V.  Schoen,  92  111.  229;  East  Line  etc.  K.  Co.  v.  Terry,  50  Tex.  129; 
Porter  t\  Stevens,  9  Cusli.  5oO;  Pteagan  v.  Pac.  R.  Co.,  21  Mo.  30;  Caldwell  v. 
Coates,  78  Pa.  St.  312;  Davis  v.  Kuapp,  8  Mo.  657;  Wright  v.  Foord,5  N.  H. 
178. 

3  East  Line  etc.  K.  Co.  v.  Terry,  50  Tex.  129. 


§    397  ISSUES    ON    THE  ANSWER.  132 

nisliee  held  tlie  money  in  question  as  defendant's  assignee,  for 
the  benefit  of  his  creditors,  it  was  incumbent  upon  the  plaintiff  to 
impeach  the  validity  of  the  assignment,  and  for  failure  to  do 
60  he  was  properly  non-suited.''^  But  in  Missouri  it  is  held,  that 
when  the  garnishee  admits  the  possession  of  money  received 
from  the  defendant  or  judgment  creditor,  and  undertakes  to 
show  as  a  reason  why  such  possession  should  not  make  him 
chargeable  as  garnishee,  that  the  money  or  property  so  held  is 
subject  to  a  trust,  the  onus  is  upon  him  of  proving  the  trust ; 
and  this  cannot  be  done  by  offering  in  evidence  a  deed  of  as- 
signment made  in  another  State,  and  not  shown  to  have  been 
valid  elsewhere.^  Probably,  where  the  answer  not  only  set  up 
the  trust,  but  stated  specifically,  and  in  detail,  the  2:)articulars 
upon  which  it  depended,  the  rule  that  gives  verity  to  the  an- 
swer, until  disproved,  would  apply  in  favor  of  this  answer,  in- 
cluding the  allegations  respecting  the  trust. 

When  the  answer,  without  being  evasive,  leaves  the  gar- 
nishee's liability  in  doubt,  he  will  be  discharged,  unless  such 
liability  is  established  by  evidence.^ 

And  in  order  to  hold  the  garnishee  liable,  it  is  not  suflScient 
to  successfully  contradict  the  answer,  in  a  manner  to  show  that 
he  is  indebted.  If  the  proof  does  not  show  any  specific  amount 
of  indebtedness,  the  garnishee  will  be  discharged.'' 

4Hecht  r.  Green,  61  Cal.  269. 

5  Frank  v.  Frank,  6  Mo.  App.  588. 

eSchafer  v.  Yizena,  30  Minn.  387  ;  Sells  v.  First  National  Bank,  55  Wis.  225  ; 
Tingley  r.  Dolby,  13  Neb.  371 ;  Walker  v.  Detroit  etc.  E.  Co.,  49  Mich.  446 ; 
Wetberell  v.  Flanagan,  2  Miles,  243. 

7  Marks  i'.  Freyhan,  16  La.  An.  348. 


CHAPTER  XXIX. 

EXTENT   TO    "WHICH  GARNISHEE   IS   REQUIRED   TO   DEFEND. 

§  398.  General  remarks- 

§  399.  The  defense  of  want  of  jurisdiction. 

§  400.  Tlie  defense  of  prior  garnishment. 

§  401.  Exemption  as  a  defense.  * 

§  402  Assignment  j^rior  to  service. 

§  403.  Defense  of  payment — No  goods,  etc. 

§  404.  Defenses  on  account  of  the  capacity  in  which  the  gaTnishee  holds  prop- 
erty. 

§  405.  Other  matters  of  defense  to  garnishment  ijroceedings. 

§  398.  General  Remarks. — Referring  to  a  former  chapter, 
it  seems  proper  to  remind  the  reader  of  what  is  there  generally 
stated — that  the  garnishee  is  not  regarded  as  a  party  interested 
in  the  contest  between  the  plaintiff  and  defendant  in  the  main 
action.  That  he  is  a  mere  stakeholder  between  the  parties,  who 
is  not  to  be,  by  the  garnishment,  placed  in  a  worse  position 
than  that  occupied  by  him  as  a  debtor  before  the  institution 
of  the  suit.^  It  is  necessary  to  reiterate  this  statement  of  the 
abstract  principle,  that  it  may  not  be  lost  sight  of  in  view  of 
the  number  of  instances  where  the  authorities  seem  to  place 
this  disinterested  third  party  in  a  position  which  practically 
forces  upon  him  the  necessity  of  defending  the  rights  of  the  de- 
fendant and  other  parties  actually  interested  in  the  subject  of 
attachment.  Where  he  is  himself  directly  interested  in  the 
fund  or  property  against  which  the  attachment  issues,  it  of 
course  goes  without  saying,  that  he  occupies  a  jjosition  in  the 
proceeding  directly  adverse  to  the  plaintiff.  He  must  defend 
himself  and  his  own  property  at  his  own  expense.  But  this  is 
not  the  only  state  of  case  in  which  he  may  find  himself  in  a 
position  of  unwonted  antagonism  towards  a  party  between 
whom  and  himself  there  exists  no  privity  of  contract.  He 
may  be  garnished  in  respect  to  a  debt  which  he  is  willing  and 

^Ante,  §  325;  Curtis  v.  Alvord,  45  Conn.  569;  Tupper  v.  Cassel,  45  Miss.  352. 


§    398  EXTENT   OF   GARNISHEE'S    DEFENSE.  104 

ready  to  pay  to  his  creditors,  and  be  not  only  prevented  from 
doing  so,  but  may  be  driven  into  litigation,  and  required  to  as- 
sume its  burdens  for  the  immediate  benefit  of  others. 

The  attachment  law  is  purely  statutory.  The  rights  and 
liabilities  growing  out  of  its  administration  cannot  be  deduced 
from  broad  general  principles.  It  is  so  loosely  fitted  into  the 
system  of  which  it  is  a  part,  that  formulated  rules  become 
misleading  when  applied  to  its  practical  operations.  Where 
it  is  declared  as  a  principle  governing  the  garnishee's  relation 
to  the  principal  action,  that  he  is  a  disinterested  party — a  mere 
stakeholder  who  should  not  meddle  or  seek  to  influence  the 
result — there  is  danger  of  creating  a  false  impression.  The  doc- 
trine thus  declared  may  be  true  of  a  particular  case,  and  par- 
tially true  of  others  ;  but  it  is  so  wide  of  the  truth  when  applied 
to  many  others  that  it  cannot  be  relied  upon  as  a  general  rule. 
The  wrong  impression  it  leaves  is,  that  the  garnishee  has  noth- 
ing to  do  but  to  answer  fully  and  truly,  after  which  the  Court 
will  see  to  it  that  he  is  amply  protected.  This  is  never  true  when 
he  claims  an  interest  in  the  fund  or  property  sought  to  be  at- 
tached. It  is  not  always  true,  even  when  he  is  as  disinterested 
in  fact  as  he  is  assumed  to  be.  So  much  of  it,  however,  is  true 
as  requires  the  garnishee  to  act  between  the  parties  impartial- 
ly, when  his  own  interest  is  not  involved  in  that  of  one  of  the 
other  parties.  He  has  no  right  to  give  his  gratuitous  aid  to 
either.  He  may  be  required  to  defend  the  main  action,  but  it 
is  only  because  such  defense  is  necessary  for  his  own  protec- 
tion. 

It  is  also  stated  as  if  it  were  a  rule,  that  the  garnishee 
stands  in  no  worse  position  than  if  he  had  been  sued  by  the 
creditors  to  whom  he  is  indebted.^  This  is  only  partially  true. 
In  some  cases  it  falls  considerably  short  of  the  truth.  When 
the  garnishee  is  summoned,  and  the  circumstances  are  favor- 
able to  an  unconditional  admission  of  indebtedness,  he  may  so 
answer,  recover  his  costs,  pay  the  money  into  Court,  and  be 
discharged  from  further  liability.  But  in  any  case,  when  sued 
by  defendant  he  may  confess  judgment  and  satisfy  the  same  at 
once, which  he  cannot  always  do  in  all  cases  of  garnishment. 
In  a  direct  suit  against  himself,  when  he  is  really  indebted,  he 

2  Curtis  V.  AlTord,  45  Conn.  569. 


135  EXTENT   OF   GARNISHEE'S   DEFENSE.  §    399 

has  but  a  sinccle  action  to  care  for.  When  garnished,  there 
arc  two  suits,  in  each  of  which  there  are  questions  of  jurisdic- 
tion which  he  is  not  at  liberty  to  waive,  however  indifferent  he 
may  feel  as  to  the  result.  He  may  not  only  be  required  to 
stand  on  his  own  defense,  against  being  forced  to  pay  what  he 
does  not  owe^  but  may  be  forced  in  his  own  defense  to  inter- 
pose objections  to  the  procedure,  to  the  end  that  he  shall  not 
be  drawn  into  paying  his  debt  to  the  wrong  party.  The  judg- 
ment is  not  necessarily  binding  on  the  defendant.^ 

§  399.  The  Defense  of  Want  of  Jurisdiction.— It  has  been 
frequently  stated  that  the  garnishee  cannot  waive  service  of 
process  by  personal  appearance,  and  thus  clothe  the  Court  with 
jurisdiction  to  render  judgment  in  garnishment  against  him- 
self, that  shall  be  binding  upon  others. ^  The  reason  of  this, 
as  given  in  most  of  the  authorities,  is  that  jurisdiction  of  the 
subject  matter  is  given  by  the  statute,  which  prescribes  the 
mode  of  acquiring  jurisdiction  of  the  person  and  of  the  prop- 
erty affected  by  the  attachment.  In  garnishment,  the  property 
of  defendant  is  attached  by  service  of  summons  or  notice  on 
the  garnishee.  For  him  to  be  permitted  to  waive  this  service 
would  give  him  power  to  dispense  with  a  statutory  require- 
ment that  is  prescribed  for  the  security  of  defendant  or  other 
creditors  or  assignees.  But  it  Is  held  that  this  rule  does  not  ap- 
ply in  a  suit  instituted  against  the  garnishee  himself,  when  no 
rights  of  opposing  creditors  are  involved.^  When,  however, 
the  garnishee  is  regularly  summoned,  and  has  an  opportunity 
to  make  his  defense,  he  must  do  so  during  the  terra,  unless  for 
good  cause  shown  the  Court  grants  him  further  time.  And  if 
he  neglects  to  interpose  such  defense  as  he  may  have,  he  will 
not  be  heard  at  a  subsequent  term  to  complain  of  the  judgment 
regularly  entered  against  him,  on  the  ground  that  it  was  ob- 
tained by  mistake  or  surprise.^     So  far  as  the  process  is  con- 

3  See  Ruff  v.  Ruff,  85  Pa.  St.  333. 

1  Ante,  §§  33(5,  361,  380.  See  also  Steen  v.  Norton,  45  Wis.  412  (partially  over- 
ruling Blackwood  y.  Jones,  27  Wis.  498;  Fairfield  y.  Madison  Mf'g  Co.,  38  Wis. 
34(5);  Epstein  v.  Salorgue,  6  Mo.  App.  352;  Haith  v.  Pfeifle,  42  Mich.  31.  See 
Woodruff  V.  Bacon,  34  Conn.  182;  Badger  v.  Towle,  48  Me.  20. 

2  Freeman  v.  Miller,  51  Tex.  443. 

3  Abell  V.  Simon,  49  Md.  318. 


§    399  EXTENT    OF    GARNISHEE'S    DEFENSE.  136 

cerned,  the  garnishee  must  act  with  the  same  impartiallt}-  that 
the  \a\Y  imposes  as  a  duty,  before  as  after  service.  lie  is  not, 
with  notice  of  the  impending  garnishment,  to  avoid  service  in 
the  interest  of  defendant  ;  and  at  the  same  time,  where  he  has, 
without  any  previous  knowledge  of  defendant's  indebtedness, 
and  without  any  intention  to  defraud,  entered  into  a  contract 
to  purcliase  property  from  defendant,  he  is  under  no  obligation 
to  delay  payment  in  anticipation  of  process  being  served  upon 
him,  when  he  is  notified  that  the  creditors  wish  to  attach  the 
money  in  his  hands,  but  may  complete  the  purchase  and  pay 
over  the  consideration  without  reference  to  the  creditoi's.* 

But  the  jurisdiction  which  the  Court  has  to  render  judg- 
ment against  the  garnishee  is  not  complete,  even  where  the 
service  upon  him  is  in  strict  compliance  with  the  statute. 
This  is  sufficient  to  require  the  garnishee  to  answer ;  but  be- 
fore judgment  can  be  rendered,  by  which  the  property  or  fund 
in  his  hands  can  be  condemned  to  the  payment  of  plaintiff's 
demand,  there  must  be  a  valid  judgment  against  the  defendant.^ 
And  in  order  that  judgment  may  be  rendered  in  the  principal 
case,  there  must  be  jurisdiction  both  of  the  subject  matter  and 
the  defendant,  acquired  in  some  method  which  the  law  recog- 
nizes as  sufficient  for  the  purpose.  And  where  the  garnishee 
pays  a  judgment  against  himself,  which  is  based  upon  a  judg- 
ment against  defendant  rendered  without  jurisdiction,  he  is  not 
pi'otected  by  such  payment  against  a  subsequent  action,  brought 
by  the  principal  defendant  or  other  creditor.^  This  is  a  fair 
illustration  of  the  proposition  that  the  garnishee  may  be 
forced,  for  his  own  security,  to  protect  the  defendant.  Where 
the  Court  has  failed  to  acquire  jurisdiction  of  the  garnishee  by 
proper  service,  and  this  objection  is  raised  in  limine,  the  de- 
cision of  the  Coui't  as  to  its  jurisdiction  ought  to  protect  the 
gax'nishee  in  case  judgment  is  rendered  against  him,  though  it 
is  not  clear  that  it  would  be  so  held  in  all  the  States,  "\rhere, 
however,  the  judgment  Is  rendered  by  a  Superior  Court,  it 
would  generally  be  held  sufficient  that  the  garnishee  made  the 
objection   in   good    faith,  and  the  Court  decided    it ;  as    this 

4  Fisher  w.  Hall,  44  Mich.  493. 

o  Withers  v.  Fuller,  30  Gratt.  547;  Bryan  v.  Dean,  63  Ga.  317;  Laidlaw  v. 
Morrow,  44  i^Iicli.  547, 
*  Laidlaw  v.  Morrow,  M  Mich.  547. 


137  EXTENT   OF   GARNISHEE'S    DEFENSE.  §    399 

would  negative  the  idea  that  the  judgment  was  obtained  by 
the  garnishee's  voluntary  submission  J  But  the  same  cannot 
be  said  where  the  objection  raised  is  that  the  judgment  against 
the  defendant  is  void  for  want  of  jurisdiction.  Should  the 
Court  err  in  this  respect,  and  render  judgment  against  the 
garnishee,  it  will  not  be  binding  upon  the  defendant  who  was 
not  a  pai'ty  to  the  proceedings.  To  hold  otherwise,  would  be 
to  make  garnishment  a  means  of  enforcing  judgments  which 
verc  absolutely  void.^  It  is  of  the  first  importance,  therefore, 
fo*  the  garnishee  to  see  that  the  judgment  against  defendant 
was  not  only  rendered  by  a  Court  with  jurisdiction  of  the  sub- 
ject matter,  but  that  jurisdiction  of  the  defendant,  or  of  the  prop- 
erty or  credit,  was  obtained  in  the  manner  pointed  out  by  the 
statu'-.e.  Against  a  judgment  sought  against  himself,  which  is 
based  upon  a  void  judgment  against  defendant,  he  must  de- 
fend tc  the  last,  and  is  ordinarily  compelled  to  defend  alone. ^ 
The  emission  of  the  justice  to  make  any  entry  in  his  docket 
respecting  the  proceeding  by  garnishment,  until  after  entry  of 
the  princ'pal  judgment;  failure  to  enter  an  adjournment  in 
the  garnis'ament  proceedings ;  the  omission  of  the  officer  to 
show  in  his  return  upon  which  one  of  two  partners  the  sum- 
mons was  served,  where  the  process  was  nominally  against  the 
firm  as  garnishees  ;  a  misnomer  in  the  affidavit  and  summons, 
where  service  was  shown  to  have  been  made  on  the  proper 
party  ;  were  ail  held  to  be  defects  in  the  proceedings  of  which 
the  garnishee  was  under  no  obligation  to  take  advantage, 
when  the  principal  defendant  and  one  of  the  garnishees  ap- 
peared. And  it  was  also  held  in  the  same  case,  that  even 
where  the  summons  was  not  served  on  the  principal  defendant, 
in  strict  conformity  to  the  statute  then  in  force,  the  garnishee 
was  required  to  make  only  such  defenses  to  the  merits  as  he 
knew  the  principal  debtor  might  make,  if  px'csent  defending 
the  garnishee  proceedings,  and  not  to  make  technical  objec- 
tions to  defects  in  the  record,  which  might  be  cured  by 
amendment.^*^ 

■7  Gunn  V.  Howell,  35  Ala.  144;  Wyatt's  Adm'r  v.  Eambo,  29  Ala.  510. 
8  Ante,  §  4(J;  Ray  v.  Bancus,  43  Barb.  310;  Sliurer  v.  Brainard,  29  Barb.  23. 
&  Laidlaw  v.  Morrow,  44  Midi.  547;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  St. 
354;  'Jl  Am.  Rep.  W. 
w  Busbnell  v.  AUen,  48  "Wis,  460. 


§    399  EXTENT   OF   GARNISHEE'S   DEFENSE.  138 

When  the  principal  defendant  is  personally  served  or  ap- 
pears, the  garnishee  is,  as  a  rule,  under  no  obligation  to  inter- 
pose objections  to  tlie  regularity  of  the  proceedings  to  obtain 
the  principal  judgment.  Objections  of  this  kind  are  the  privi- 
lege of  the  principal  defendant,  and  if  waived  by  hiui  the  gar- 
nishee is  concluded,  and  may  only  object  in  limine  to  irregu- 
larity in  the  manner  of  obtaining  jurisdiction  of  himself,  and 
if  he  has  been  regularly  brought  in,  the  defendant  is  coneludet 
by  the  judgment. ^^  And  where  irregularities  of  procedure  ia 
the  principal  action  have  been  waived  by  defendant,  the  gar- 
nishee Avill  be  concluded. ^^  But  the  garnishee  is  interested  in 
defending  against  the  proceeding,  even  where  both  he  and  the 
defendant  have  been  personally  served,  upon  the  ground  that 
the  Court  has  no  jurisdiction  in  garnishment  in  the  class  of 
suits  to  which  the  principal  action  belongs.  The  nature  of 
the  demand  may  be  one  for  which  attachment  will  rot  lie  ; 
and  if  so,  this  objection  may  be  raised  by  the  garnishee  as  a 
jurisdictional  question. ^^  So  it  has  been  repeatedly  held  that 
the  garnishee  may  resist  judgment,  upon  the  ground  that  cer- 
tain prerequisites  of  procedure,  which  were  essential  to  complete 
jurisdiction,  were  omitted. ^^  So,  also,  that  he  may  do  so  be- 
cause of  non-citizenship  of  the  pax'ties  to  the  principal  action. ^^ 

When  the  Court  is  an  inferior  one,  whose  jurisdiction  is 
limited  by  the  amount  of  the  demand,  it  Avill  generally,  when 
it  is  original  attachment,  be  governed  by  the  amount  of  plain- 
tiff's demand  against  defendant. ^^  But  it  has  been  held  other- 
wise, where  the  proceeding  was  based  upon  an  execution,  for 
the  reason  that  it  was  in  effect  a  proceeding  between  the  prin- 
cipal debtor  as  plaintiff,  and  the  garnishee  as  defendant :  con- 
sequently, if  the  amount  of  garnishee's  indebtedness  to  the 

11  Washburn  i'.  N.  Y.  &  V.  M.  Co.,  41  Vt.  50. 

12  Parmer  v.  Ballard,  3  Stewart,  326;  Tbompsou  v.  Allen,  4  Stew.  &  Port.  184; 
St.  Louis  Perpetual  Ins.  Co.  v.  Colin,  9  Mo.  421;  Stebbins  v.  Fitch,  1  Stew.  180; 
Mathney  i\ -Galloway,  12  Sm.  &  Me.  475;  Erwin  v.  Heath,  50  ISIiss.  795. 

13  Harmon  r.  Birchard,  8  Blackf.  418;  Pope  v.  Hibernia  Ins.  Co.,  24  Ohio  St. 
481;  Dew  v.  Bank  of  Ala.,  9  Ala.  323. 

1*  Ford  V.  AYoodward,  2  Sm.  &  M.  260;  Berry  tJ.  Anderson,  2  How.  (Miss.) 
683;  Oldham  v.  Ledbetter,  1  How.  (Miss.)  43;  26  Am.  Dec.  690;  Smith  ». 
McCutchen,  .38  Mo.  415;  Shivers  v.  AVilson,  5  Harr.  &  J.  130;  9  Am.  Dec.  497; 
Bruce  v.  Cook,  6  Gill  &  J.  345;  Yerby  v.  Lackland,  6  Harr.  &  J.  446. 

15  \\"ebb  r.  Lea,  6  Yerger,  473. 

16  Weatherwax  v.  Paine,  2  Iklich.  553. 


139  EXTENT   OF    GARNISHEE'S    DEFENSE.  §   400 

principal  debtor  was  in  excess  of  the  limit,  the  proceeding 
was  beyond  the  jurisdiction  of  the  Court,  even  though  plain- 
tiff's judgment  was  for  a  sum  clearly  within  such  limit. ^'^ 

§  400.  The  Defense  of  Prior  Garnishment. — Where  several 
creditors  of  the  same  debtor  attach  by  service  of  garnishment 
on  the  same  person,  they  take  precedence  in  the  direct  order  in 
which  service  is  made  in  the  different  cases. ^  It  follows  that 
an  answer  to  a  subsequent  attachment  which  set  up  the  prior 
garnishment  as  a  reason  why  the  garnishee  should  not  be 
charged  would  be  either  a  niatter  of  abatement  or  a  complete 
bar  to  recovery  on  the  summons  last  served.  This,  of  course, 
would  be  subject  to  the  proviso,  that  the  prior  garnishment 
was  for  an  amount  sufficient  to  absorb  the  entire  amount  of 
garnishee's  indebtedness,  or  equal  the  value  of  defendant's 
property  held  by  garnishee.  It  is  also  subject  to  certain  ex- 
ceptions to  be  noted  hereafter.^  For  obvious  reasons,  this  is  a 
defense  which  the  garnishee  must  make  for  his  own  protection 
against  double  liability.^  But  in  order  to  render  it  a  bar  to 
recovery  by  rival  creditors,  it  is  not  only  essential  that  the 
prior  garnishment  should  be  in  all  substantial  respects,  espec- 
ially in  the  matter  of  service  of  process,  regular,  but  it  should 
be  so  stated  in  the  answer.  Where  the  same  defense  was  made 
to  an  action  by  a  creditor,  it  was  held  in  New  York  not  to  be 
sufficient  that  the  defendant  stated  in  his  answer  that  the  debt 
had  been  attached  by  one  of  plaintiff's  creditors  ;  and  that  said 
action  "  has  since  been  pending,"  and  that  defendant  had  nev- 
er been  released  from  its  obligation.  It  should  have  stated 
that  the  attachment  was  still  in  force.''  It  is  hardl}-  probable 
that  the  sufficiency  of  garnishee's  answer  would   be  tested  by 

"  Haines  v.  O'Conner,  5  111.  App.  213.  Where  the  garnishee  waives  objec- 
tions to  the  service  upon  himself,  the  defendant  cannot  always  take  advan- 
tage of  the  defect. — McConnell  on  Trustee  Process,  458,  et  seq.  See  also  Ja- 
cobs V.  Copeland,  54  Ml  .  503;  Dunning  v.  Owen,  4  Mass.  162.  ' 

iMcCobb  V.  Tyler,  2  Cranch  C.  C.  199  ;  Talbot  v.  Harding,  10  Mo.  350  ;  John- 
son V.  Griffith,  2  Cranch  C.  C.  199;  Webster  v.  Adams,  58  Me.  317;  Wilder  v. 
Weatherhead,  32  Vt.  765;  Eastman  v.  Newman,  59  N.  H.  581. 

2  Post,  §  499,  et  seq. 

8 Mars  V.  Va.  Home  Ins.  Co.,  17  S.  C.  514  ;  Noyes  v.  Foster,  48  Mich.  273. 

4  Marsh  v.  West  etc.  Mf'g  Co.,  46  N.  Y.  Sup.  Ct.  8.  See  Mortland  v.  Little, 
137  Mass.  340. 


§    401  EXTENT    OF    GAENISHEE's   DEFENSE.  140 

the  same  standard ;  but  still  the  conthiuation  of  the  quasi  lien, 
as  well  as  its  inception,  should  appear  in  the  garnishee's  re- 
sistance to  the  judgment. 

In  Georgia,  however,  no  semblance  of  a  lien  and  no  priority 
of  right  seems  to  be  acquired  by  service  of  process,  which  does 
not  yield  to  the  claim  of  the  prior  judgment,  though  obtained 
in  a  suit  instituted  subsequent  to  the  service  of  process  in  gar- 
ni^^hment.  The  garnishee  is  protected  in  paying  the  judgment 
first  rendered,  though  summons  was  first  served  upon  him  in 
another  suit,  in  which  judgment  is  asked  upon  the  ground 
that  defendant  had  given  plaintiff  an  order  ujjon  the  garni- 
shee to  pay  the  amount  in  his  hands.  The  recovery  from  him 
as  garnishee  must  be  based  upon  his  indebtedness  to  defend- 
ant.5 

§  401.  Exemption  as  a  Defense. — We  have  already  noticed 
at  some  length  in  former  chapters  the  circumstances  un- 
der wdiich  the  garnishee  may  set  up  in  his  answer,  and  main- 
tain In  his  contest  with  plaintiff,  the  statutory  exemption  of  the 
debt  from  himself  to  defendant.^  In  most  of  the  States,  and 
])robably  in  the  larger  number  of  cases  in  all  the  States  where 
this  exemption  is  claimed,  it  must  be  done  by  the  debtor  for 
whose  benefit  the  provision  of  tiie  statute  applies.  In  Illinois, 
at  least,  however,  where  the  subject  of  garnishment  is  wages 
due  an  em[)loyee,  and  such  wages  are  exempt,  it  is  the  duty 
of  the  employer  when  garnished  to  make  the  claim  for  him. 
Thus,  if  a  Railroad  Company  pay  over  to  plaintiff,  when  it  is 
garnished,  wages  exem[)t  by  law,  wdien  the  employee  to  whom 
such  wages  are  due  is  tiie  head  of  a  family,  it  will  still  be  lia- 
ble to  the  employee.^  So  in  Vermont,  where  the  garnishee 
knows  that  money  in  his  hands  was  received  for  a  pension  due 
the  defendant  from  the  government,  and  is  for  that  reason  ex- 
empt, he  cannot  be  charged,  and  should  at  least  bring  this 
* 

5  Hall  r.  Daniel,  62  Ga.  620.  It  is  held  that  a  judgment  regularly  obtained 
against  the  garnishee  will  entitle  him  to  equitable  relief  by  injunction,  to  re- 
st rain  the  principal  defendant  or  any  one  else  from  suing  for  the  same  de- 
maud. — Morgan  v.  Peet,  8  Mart.  395.  See  also  Watkins  v.  Gray,  5  Mo.  App. 
571,  5SI2. 

1  Ante,  §§  ."573,  393. 

2  Chicago  &  Alton  E.  Co.  v.  Eagland,  84  111.  375. 


141  EXTENT   OF    GARNISHEE'S   DEFENSE.  §   401 

fact  to  the  knowledge  of  the  Court,  If  not  make  a  complete  de- 
fense against  the  proceeduig  by  which  he  is  sought  to  be  held 
as  garnishee.^  A  widower  with  whom  lived  his  son  and  son's 
wife,  and  who  employed  a  household  servant,  was  held  the 
head  of  the  family,  and  entitled  to  the  exemption  of  a  debt  due 
him  for  personal  services  rendered  within  three  months  next 
preceding  the  garnishment,^  And  where  wages  ai-e  so  exempt 
for  a  time  next  preceding  the  service  of  process,  the  creditor 
cannot  detain  the  money  in  the  hands  of  the  garnishee  until 
the  amount  due  does  not  come  within  the  terms  of  the  exemp- 
tion for  the  reason  that  it  is  due  for  services  rendered  prior  to 
the  commencement  of  the  statutory  period,  and  then  make 
a  second  service,  so  as  to  deprive  the  debtor  of  his  exemp- 


tion 


5 


It  is  not,  however,  the  duty  of  the  garnishee  to  assume  the 
burdens  and  risk  of  this  defense,  where  the  defendant  himself 
may  be  made  a  party  for  that  pui'pose,  and  the  garnishee  does 
all  that  is  incumbent  upon  him  to  afford  the  party  interested  an 
opportunity  to  make  the  claim  of  exemption.^  When,  how- 
ever, the  failure  of  the  affidavit  in  garnishment  to  negative  the 
fact  of  exemption  defeats  the  jurisdiction  of  the  Court,  as  is 
the  effect  of  such  failure  when  the  proceeding  is  before  a  jus- 
tice of  the  peace  in  the  State  of  Wisconsin,''  the  garnishee 
cannot  safely  pay  the  judgment,  should  one  be  rendered 
against  him  in  the  proceeding,  for  the  reason  that  its  being 
void  for  want  of  jurisdiction  renders  it  no  protection  against  a 
subsequent  suit  by  the  principal  debtor.^  It  may  also  be  of 
service  to  add  In  this  connection,  Avhat  is  quite  generally  held 
to  be  the  construction  given  to  the  exemption  laws,  that  where 
the  statute  only  by  express  provisions  exempts  propei'ty  and 
credits  from  execution,  without  making  special  mention  of  at- 

3  Haywood  v.  Clerk,  50  Vt.  612;  Adams  v.Newhall,  8  Vt.  190;  Lock  v.  Jolm- 
Bon,  3(i  Me.  4G4;  Pierce  v.  Chicago  etc.  Co.,  36  Wis.  283.  But  where  money  re- 
ceived by  a  government  pensioner  was  deposited  in  bank,  it  was  held  to  have 
lost  its  distinctive  character  as  exempt  money,  and  might  be  attached  by 
garnishment.    Webb  v.  Holt,  57  Iowa,  712. 

4  Tyson  v.  Reynolds,  52  Iowa,  431. 
6  Collins  V.  Chase,  71  Me.  434. 

6  Chilcote  r.  Conley,  36  Ohio  St.  545;  Horton  v.  Summers,  62  Ga.  302. 

1  Rasmussen  v.  McCabe,  46  Wis.  600;  Citing  Steen  v.  Norton,  45  Wis.  412. 

8  Supra,  §  397.    See  also  Ante,  §§  46,  47. 


§  402       EXTENT  OF  GARNISHEE'S  DEFENSE.         142 

tachment,  it  nevertheless  embraces  the  latter.  Whatever  can- 
not be  taken  in  satisfaction  of  a  judgment,  cannot  be  taken  by 
attachment  which  precedes  judgment.^ 

§  402.  Assignment  prior  to  Service. — After  an  equitable 
assignment  of  the  debt  or  other  liability  of  the  garnishee,  of 
which  he  is  notified,  he  is  no  longer  subject  to  garnishment  at 
the  suit  of  creditors  of  his  creditor.^  The  same  is  true  where 
the  assignment  is  for  the  benefit  of  creditors.^  Where  the 
transfer  of  interest  is  actually  made  prior  to  the  service  of  gar- 
nishment process,  in  such  a  manner  as  to  be  effective,  notice 
coming  to  the  garnishee  after  service,  and  sometimes  even 
after  answer,  imposes  upon  him  the  duty  of  bringing  the  mat- 
ter to  the  attention  of  the  Court,  by  answer  or  supplemental 
answer,  as  the  case  may  be.^  But  this  does  not  necessarily 
impose  upon  him  the  duty  of  making  a  complete  defense  to 
the  claim  in  the  proceeding  against  himself.  Where  the  inter- 
ests of  the  garnishee  have  been  properly  considered  by  the 
legislature,  in  connection  with  the  disinterested  position  which 
lie  occupies,  ample  provision  has  been  made  to  enable  him  to 
shift  the  burden  of  the  contest  to  the  shoulders  of  the  party 
directly  interested  in  the  result.  The  assignee  or  transferree 
may,  by  proper  notification,  be  brought  in  as  a  claimant  to  de- 
fend his  own  interest.^  But  where  the  statute  is  silent  upon 
this  matter,  and  the  transfer  is  valid,  the  rights  of  the  assignee 
as  against  the  garnishee  are  perfected  by  notice  of  the  assign- 
ment, and  the  assignor  has  ceased  to  have  any  interest  to  pro- 
tect. So  the  garnishee  is  left  to  defend  himself  as  best  he 
can.  Where  he  is  unable  to  bring  in  the  assignee,  or  fails  to 
do  so  by  notifying  such  assignee,  when  the  statute  authorizes 
such  a  method  of  avoiding  liability,  the  judgment  against  him 
as  garnishee  will  be  no  protection  against  the  claim  of  the  party 

s  McCullougli  V.  Carragan,  2i  Hun.  457;  'Wilson  v.  Bartholomew,  45  Mich.  41. 

1  Dresser  v.  McCord,  96  111.  389;  Kane  v.  Clough,  36  Mich.  436;  24  Am.  Kep. 
599;  Menken  v.  Gumbel,  57  Miss.  756;  Adams  v.  Kobinson,  1  Pick.  461;  Wil- 
liams V.  Ingersoll,  89  N.  Y.  508. 

2  Dehner  v.  Helmbacher  Mills,  7  111.  App.  47. 
8  Ante,  §§  371,  383. 

4  Simmons  v.  Guyon,  57  Ala.  Ill;  Smith  v.  Ainscow,  11  Neb.  476;  Sailer  ». 
Ins.  Co.,  62  Ala.  221;  Sheldon  y.  Hinton,  6  IlL  App. 216;  Fisli  v.  Keeney,  91  Pa. 
St.  138. 


143         EXTENT  OF  GARNISHEE'S  DEFENSE.       §  402 

to  whom  the  property  or  credit  was  transferred.^  The  oppor- 
tunity being  afforded  of  escaping  liability,  whether  it  be  by 
special  provision  of  the  statute  in  relation  to  attachments,  or 
by  a  general  statute  that  prescribes  a  particular  mode  of  sub- 

5  Smith  V.  Ainscow,  11  Neb.  476;  Wardle  v.  Briggs,  131  Mass.  518;  Wells  v. 
American  Ex.  Co.,  55  Wis.  23.  See  Stinsou  v.  Caswell,  71  Me.  610;  Fitzsim- 
mons  V.  Carroll,  123  Mass.  401;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  St.  354;  21 
Am.  Reii.  66.  The  latter  case  presents  an  instance  of  peculiar  hardship  upon 
the  garnishee,  which  it  is  difficult  to  attribute  entirely  to  the  ordinary  work- 
ings of  the  attachment  law.  In  the  view  the  Court  of  one  State  takes  of  the 
laws  of  another,  the  garnishee  was  guilty  of  laches  in  not  making  such  a  de- 
fense to  the  proceeding  as  he  might  have  done,  or  in  failing  to  avail  himself 
of  the  statutory  provisions  made  to  enable  him  to  bring  in  the  assignee.  The 
circumstances  of  the  case  were  briefly  these :  A  judgment  was  recovered  in 
Pennsylvania,  in  an  action  by  a  resident  of  that  State  against  a  resident  of 
New  York.  The  plaintiff  (the  Thompson  Oil  Company)  assigned  the  judg- 
ment, for  a  valuable  consideration,  to  a  resident  of  the  State  where  the  judg- 
ment was  of  record.  Prior  to  notice  of  this  assignment,  the  judgment  debtor 
was  garnished  in  the  State  of  New  York,  at  the  suit  of  a  creditor  of  the  judg- 
ment plaintiff.  The  garnishee  notified  his  foreign  creditor  by  letter,  and  ulti- 
mately sent  a  similar  notice  to  the  assignee.  The  attachment  suit  in  New 
York  proceeded  to  judgment  against  the  garnishee,  and  was  by  him  paid.  In 
an  action  brought  in  I'ennsylvaniaon  the  judgment  to  the  use  of  the  assignee, 
:Mekcek,  -J.,  thus  declares  the  law  governing  the  case :  "First.  The  Thompson 
Oil  Company  was  a  corporation  formed  under  the  laws  of  this  commonwealth, 
and  doing  business  therein.  The  assignees  were  citizens  and  residents  of 
Pennsylvania.  The  judgment  assigned  was  of  record  in  a  Court  of  this  State. 
When  the  assigmment  was  made,  the  assignor,  the  assignees,  and  theprojierty 
assigned  were  all  within  this  commonwealth,  and  governed  by  its  laws.  That 
the  assignment  was  for  a  full  consideration  and  in  good  faith,  are  unques- 
tioned. It  was  a  purchase,  by  persons  having  a  right  to  buy  from  a  party 
having  a  right  to  sell,  of  property,  of  which  no  rule  or  policy  of  law  forbids 
the  sale.  It  was  not  fraudulent,  either  in  law  or  fact.  It  was  not  a  statutory 
transfer  of  the  judgment,  but  a  voluntary  sale  or  assignment  of  it.  *  *  *  Being 
a  valid  assignment  when  and  where  made,  it  is  valid  everywliere.  [Citing 
Story's  Conflict  of  Laws,  §§  398,  399;  Speed  v.  May,  5  Harris,  91;  Kelly?'.  Crapo, 
45  N.  Y.  86;  6  Am.  R.  499.]  *  *  *  By  this  transfer  the  whole  property  in  the 
Thompson  Oil  Company  in  the  judgment  passed  to  the  assignees.  *  *  * 

"  Secondly.  It  is  contended  that,  inasmuch  as  the  foreign  attachment  was 
served  on  the  garnishees  before  they  had  notice  of  the  assignment,  the  claim 
of  the  assignees  is  postponed  to  that  of  the  attaching  creditors.  This  conclu- 
sion is  not  sustained  by  the  authorities  in  this  country;  among  others,  may  be 
cited:  Wakefield  v.  Martin,  3  Mass.  558;  Dix  v.  Cobb,  4  Mass.  512;  Van  Bus- 
kirk  V.  Warren,  24  Earb.  457  ;  United  States  v.  Vaughan,  3  Binn.  394;  5  Am. 
Dec.  375;  Stevens  u.  Stevens,  1  Ashm.  190;  Pellman  v.  Hart,  1  Barr,  203  ;  Pat- 
ton  u.  Wilson,  10  Casey,  299;  Speed  v.  May,  5  Harris,  91;  5  Wall.  307.  The 
reason  on  which  these  authorities  rest  is,  that  the  plaintiff  in  a  foreign  at- 
tachment stands  on  no  better  footing,  as  to  the  thing  attached,  than  his  debt- 
or, the  defendant,  whose  i^roperty  is  sought  to  be  seized.  All  that  can  be 
seized  by  virtue  of  the  attachment  is  the  property  of  the  debtor.  *  *  * 

"  It  is  argued,  however,  that  as  the  effect  of  the  attachment  on  the  assign- 
ment lias  been  otherwise  decided  by  the  Court  in  New  York,  and  the  gar- 


§    402  EXTENT    or    GAnXISHEE's    DEFENSE.  144 

stituting  parties  in  such  or  similar  cases,  lie  is  generally  re- 
quired to  pursue  the  prescribed  method.  If  the  notice  served 
u|)on  the  assignee  is  insufficient  in  substance,  or  not  given  in  a 
reasonable  time,  the  assignee  is  under  no  obligation  to  appear 

nishees  have  pai  1  the  debt  to  tlie  attaching  creditors,  it  establishes  a  good  de- 
fense hero  for  the  plaintiifs  in  error.  Article  iv.,  Section  1,  of  the  Constitution 
of  the  United  States,  declares:  'Full  faith  and  credit  shall  le  given  in  each 
State,  to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State,  and  Congress  may,  by  general  laws,  prescribe  the  manner  in  which  such 
acts,  records,  and  proceedings  shi.ll  be  proved,  and  the  effect  thereof.'  By  the 
Act  of  2Gth  May,  1790  (2Purd.  Bi~.  1484,  Fl.  1),  Congress  prescribed  the  manner 
of  authentication,  and  further  declared:  'The  said  records  and  judicial  pro- 
ceedings, authenticated  as  aforesaid,  shall  have  such  faiih  and  credit  given  to 
them  in  every  Court  wiihin  the  United  States,  as  they  have  by  the  law  or 
usages  in  the  Courts  of  the  State  from  whence  the  said  records  are  or  shall  be 
taken.'  The  judgment  of  a  Court  of  another  State  is  thus  put  on  the  same 
footing  as  a  domestic  judgment,  with  this  qualification,  that  it  does  not  pre- 
vent an  inquiry  into  the  jurisdiction  of  the  Court  in  which  the  judgment  was 
given,  to  pronounce  it,  or  the  right  of  the  State  itself,  to  exercise  authority 
over  the  persons  or  subject  matter.  (Citing  Story's  Com.,  483  and  1307;  Bissell 
V.  Briggs,  9  Mass.  462;  6  Am.  Dec.  88;  Shumway  v.  Stillman,  4  Cow.  292;  15 
Am.  Dec.  874;  Borden  v.  Fitch,  15  Johns.  121;  8  Am.  Dec.  225;  Benton  r.  Bur- 
got,  10  S.  &  E.  240;  Steel  v.  Smith,  7  W.  &  S.  447;  Campbell  v.  Steele,  1  Jones, 
394;  Baxley  v.  Linah,  4  Harris,  241.  *  *  * 

"  The  writ  of  foreign  attachment  rests  on  the  assumption  that  the  debtor  is 
beyond  the  limits  of  the  State,  but  his  property  is  within  reach  of  process.  A 
judgment  in  personam  is  invalid,  unless  procured  after  service  of  summons,  or 
after  appearance.  *  *  *  So,  if  the  judgment  be  in  a  proceeding  in  rem,  it  is 
void,  if  the  Court  has  no  jurisdictioa  of  the  property.  (Citing  Pennsylvania 
K.  Co.  V.  Pennock,  1  U.  F.  Smith,  244.)  Nor  does  the  fact  that  the  garnishee 
in  the  attachment,  after  judgment  has  been  recovered  against  the  assignor, 
notified  the  assignor  and  the  assignee,  by  letter,  of  the  pendency  of  the  pro- 
ceedings, chan-'e  the  result.  The  notice  was  insuificient  in  substance  and  un- 
reasonable in  time.  (Citing  Erie  Bank  v.  Gibson,  1  "Watts,  143;  Paul  v-  "Wit- 
man,  3  "S\''.  &  S.  409;  Shiner  v.  Jones,  11  "Wright,  268.)  The  assignees  were  not 
bound  to  appear  on  such  notice  and  contest  the  case.  If  they  had  done  so,  and 
had  been  admitted  as  parties  to  the  suit,  the  case  of  Moore  v.  Spademan,  12  S. 
&  E.  287,  would  bind  them  to  acquiescence  in  the  judgment.  On  the  contrary, 
they  waive  none  of  their  rights.  *  *  * 

"The  law  requires  us  to  give  such  faith  and  credit  only  to  this  record,  as  it 
has  by  law  or  usage  in  the  Courts  of  the  State  of  New  York.  As  we  understand 
the  laws  of  that  State,  the  judgment,  so  far  as  it  is  attempted  to  affect  the  de- 
fendant in  error,  is  void  there.  Yoorhees'  U.  S.  Code  (10th  Ed.)  P.  114,  §  122, 
declares  '  the  Court  may  determine  any  controversy  between  the  parties  before 
it,  when  it  can  be  done  without  prejudice  to  the  rights  of  others,  or  by  saving 
their  rights  ;  but  when  a  complete  determination  of  the  controversy  cannot 
be  had  without  the  presence  of  other  parties,  the  Court  must  cause  them  to  be 
brought  in.'  It  further  declares,  '  when  it  appears  that  any  person  not  a  party 
to  the  action  claims  the  same  debt  or  projjerty  in  controversy,  such  claimant 
shall  be  substituted  of  record.' 

"This  case  presented  the  jjrecise  facts  suited  to  the  application  of  the  Code. 
It  was  the  duty  of  the  garnishee  to  invoke  its  protection.     If  he  chose  to 


145         EXTENT  OF  GARNISHEE'S  DEFENSE.       §  402 

and  defend.^  But  sliould  he  appear,  notwithstanding  the  insuf- 
ficiency of  the  notice,  he  may  be  bound  by  the  judgment." 

In  cases  where  the  garnishment  takes  place  in  a  State  wdiich 
is  not  the  residence  of  the  assignee  of  the  debt,  and  he  cannot 
be  found  tlierein,  it  must  be  under  peculiar  statutory  provis- 
ions, if  at  all,  that  he  can  be  effectually  brought  into  Court 
by  the  mere  service  of  notice  or  substitution  on  the  record,  as 
suggested  in  the  opinion  in  Noble  v.  Thompson  Oil  Company,** 
so  as  to  subject  him  to  the  jurisdiction  of  the  Court.  If,  as 
decided  by  the  Pennsylvania  Court,  the  situs  of  personal 
property  invariably  follows  the  residence  of  the  owner,  no  ju- 
risdiction in  rem  could  be  acquired  by  service  of  process  of  gar- 
nishment on  the  debtor,  as  it  is  clear  that  he  is  not  the  owner 
of  the  debt  he  owes.  Still,  if  the  Court  out  of  which  such 
process  issues  claims  such  jurisdiction,  and  exercises  it  by  ren- 
dering: iudo-ment  against  the  assi"nee,  and  such  iudo'ment  is 

DJC5  O  O'  JO 

sustained  on  appeal  or  error,  he  may  be  forced  to  pay  the 
same,  and  tlie  judgment  under  Avhich  payment  is  made  may  be 
declared  utterly  void  in  the  State  where  a  different  rule  of  con- 


waive  this  privilegre  which  the  law  gave  him  for  his  protection,  he  cannot  there- 
by Ihrow  the  loss  on  an  innocent  assignee.  (Citing  McMahon  v.  Allen,  22  How. 
193.)  *  *  *  The  judgment  pleaded  shows  on  its  face  that  it  was  obtained  in  dis- 
regard of  the  laws  of  New  York,  and  of  the  rights  of  the  assignees.  No  prop- 
erty was  seized.  Noappearanceof  the  defendants  in  error  was  procured.  *  *  * 
They  were  not  in  any  sense  a  party  to  the  action.  Their  rights  as  assignees 
were,  therefore,  not  affected.  (Citing  Ray  v.  Baucus,  48  Barb.  310.)  The  judg- 
ment rendered  against  one  not  a  party  to  the  action,  before  it  is  pronounced, 
does  not  bind  liim,  nor  is  it  any  evidence  against  him.  (Citing  Shurer  v.  Brain- 
ard,  29  Barb.  25.)  Want  of  jurisdiction  may  always  be  set  up  against  a  judg- 
ment, when  sought  to  be  enforced,  or  when  any  benefit  is  claimed  under  it. 
(Citing  Borden  v.  Fitch,  15  Johns.  121 ;  8  Am.  Dec.  225  ;  Gage  v.  Hill,  43  Barb. 
44  ;  Bank  v.  Judson,  4  Seld.  254.)  *  *  *  The  Code  gave  the  garnishees  clear 
and  specific  directions  for  their  full  protection.  They  studiously  avoided  fol- 
lowing them.  They  agreed  to  submit  the  cause  and  all  the  issues  therein  to  a 
referee.  To  his  finding  they  filed  no  exceptions.  This  manner  prevented  the 
numerous  errors  in  the  case  from  being  i^reseuted  to  the  consideration  of  the 
Court. 

"  Our  great  respect  for  the  learning  of  the  judges  of  that  Court,  impresses 
as  with  the  conviction  that  it  was  under  these  circumstances  they  permitted 
this  judgment  to  be  recovered,  and  ihat  they  would  hold  it  of  no  effect  against 
tlie  assignees,  whenever  properly  presented  for  iheir  consideration." — Opinion 
in  Noble  v.  Thompson  Oil  Co.,  79  Pa.  St.  354  ;  21  Am.  Rep.  C6. 

«  Erie  Bank  v.  Gibson,  1  Watts,  143;  Paul  v.  Witman,  3  Watts  &  S.  409. 

T  Moore  v.  Spackman,  12  S.  &  R.  287. 

*  Supra,  note. 

II.  Attach.— 10. 


§  403  EXTENT  OF  garxisitee's  defexse.  14G 

struction  prevails,  notwlthstanfUng  the  fact  that  the  statute  of 
the  other  State  has  been  fully  complied  with,  as  construed  by 
its  own  Courts.  At  least,  in  cases  of  this  kind,  where  it  is  be- 
yond the  power  of  any  process  to  bring  an  absent  or  non-resi- 
ident  assignee  before  the  Court  where  proceeding  is  pending, 
the  garnishee  has  no  choice  but  to  make  a  complete  defense,  in 
order  to  avoid  the  double  liability.  He  may  not  rest  content 
with  the  judgment  of  a  Court  of  competent  jurisdiction,  if  it 
happens  to  be  against  him,  but  must  carry  the  case  to  the 
Court  of  last  resort;  and  even  then  the  Courts  of  the  State 
where  the  assignee  pursues  his  remedy  against  the  debtor  who 
has  been  garnished,  may  decide  that  statutes  of  the  State 
where  the  garnishment  took  place  have  been  misconstrued  in 
the  matter  of  jurisdiction,  in  rendering  and  affirming  the  judg- 
ment, and  consequently  it  is  not  entitled  to  recognition.^ 

§  403.  Defense  of  Payment — No  Goods,  etc. — There  are 
■certain  matters  of  defense  which  are  so  strictly  personal  to 
himself,  that  the  garnishee  can  certainly  look  to  no  one  else  to 
contest  them  with  the  plaintiff.  Among  these  is  that  of  pay- 
ment. When  the  party  garnished  is  required  to  answer  par- 
ticularly as  to  indebtedness,  and  he  denies  being  indebted  to 
the  principal  defendant  in  any  sum  whatever,  he  need  not  go 
farther  unless  interrogated,  and  declare  that  he  never  has  been 
so  indebted,  as  this  would  be  immaterial.  "But  upon  issue 
taken  on  this  answer,  he  may,  by  proof  of  payment  of  all  prior 
indebtedness,  before  service  of  process  in  garnishment,  be 
entitled  to  a  discharge.^  So  on  a  jjlea  of  nulla  bona  to  a 
scire  facias,  it  is  held  that  the  garnishee  may  show  that  cer- 
tain specific  articles  in  his  possession  are  not  the  property  of 
the  principal  defendant.^  In  making  this  defense,  it  is  imma- 
terial whether  the  proof  shows  it  to  be  the  property  of  the 
garnishee  or  of  a  stranger  to  the  proceeding  ;  the  protection 

9  See  and  compare  Cochran  v.  Fitch,  1  Sandf .  Ch.  142,  with  Mankin  v.  Chan- 
dler, 2  Brackenbrough,  125.  Under  the  Custom  of  London,  where  prior  pay- 
ment under  garnishment  is  pleaded  to  an  action  for  money,  it  must  appear 
that  the  garnishee  was  within  the  jurisdiction  of  the  Lord  Mayor's  Court. 
— Crosby  r.  Hetherington,  4  Man.  &  G.  933. 

1  Getchell  v.  Chase,  124  Mass.  3G6. 

2  Albany  City  Ins.  Co.  v.  Whitney,  70  Pa»»St.  248. 


147  EXTENT   OF   GARNISHEE'S   DEFENSE.  §   404 

to  him  is  as  complete  in  either  case.  The  goods  alleged  to  be 
the  property  of  defendant  may  also  have  been  restored  to  his 
possession  prior  to  service,  on  proof  of  v^rhich  the  denial  will 
be  supported,  in  case  it  is  traversed  by  plaintiff.  It  is  needless 
to  say  that  such  defenses  as  these  must  be  made  by  the  gar- 
nishee, without  looking  for  aid  from  any  other  source.^  He  is 
the  only  one  concerned  in  preventing  plaintiff  from  recovering 
judgment  in  the  proceeding,  and  he  is  particularly  interested 
in  defending  for  himself,  as,  in  case  the  garnishment  should  be 
found  to  have  been  wrongfully  issued,  all  the  compensation 
the  garnishee — who  may  be  the  only  one  who  has  been  injured 
thereby — can  reasonably  hope  to  obtain,  must  be  recovered  in 
the  proceeding,  in  the  way  of  allowances  for  his  costs  and  ex- 
penses. He  is  not  protected  by  the  bond  which  is  given  for 
the  indemnification  of  defendant.* 

§  404.  Defenses  on  Account  of  the  Capacity  in  which  Gar- 
nishee holds  Property. — When  we  come  to  consider  the  sub- 
ject of  gai'nishee's  liability  as  affected  by  the  capacity  in 
which  he  holds  property,  alleged  to  be  the  property  of  defend- 
ant, we  shall  see  that  there  are  divers  circumstances  in  this 
connection,  by  which  it  will  be  impossible  to  charge  him  as 
garnishee,  or  by  which  his  liability  will  be  limited.^  This  may 
require  the  garnishee  to  make  a  defense  in  behalf  of  other  par- 
ties interested  ;•  for  when  the  answer,  after  admitting  the  pos- 
session of  property  in  which  defendant  has  an  interest,  sets 
up  as  a  reason  why  he  should  not  be  charged  as  garnishee  on 
account  thereof,  that  he  holds  it  in  a  capacity  which,  under 
the  law,  is  inconsistent  with  his  liability  to  plaintiff,  and  this 
fact  is  traversed  by  plaintiff,  the  garnishee  may  be  put  upon 
the  proof  of  the  fact.  Thus,  where  the  garnishee  claims  that 
money  of  the  judgment  debtor,  of  which  he  admits  the  pos- 
session, is  held  by  him  subject  to  a  trust,  the  07ius  is  upon  him 
to  prove  the  trust. ^  When  the  garnishee  succeeds  in  show- 
ing that  he  holds  the  money  or  property  as  trustee,  though  the 
debtor  may  be  a  beneficiary  of  such  trust,  it  is  uniformly  held 

*  Hays  V.  Anderson,  57  Ala.  374. 

4  Pounds  V.  Hammer,  67  Ala.  3(12;  Hays  v.  Anderson,  Id,  374. 

1  Post,  Ch.  XXXII. 

2  Frank  v.  Frank,  6  Islo.  App.  588. 


§    404  EXTENT   OF    GARNISHEE'S   DEFRNSE.  148 

a  good  defense  to  a  proceeding  in  Avhich  such  trustee  is  gar- 
nislied  at  the  suit  of  a  creditor  of  the  cestui  que  trust  ^  For 
siniihir  reasons,  where  the  garnisliee  admits  a  direct  indebted- 
ness to  a  common  carrier,  for  tlie  carriage  of  freight,  but 
discloses  that  a  part  of  the  sum  so  due  is  owing  to  another 
carrier,  and  is  only  payable  to  the  one  to  whom  he  is  directly 
liable,  j^ursuant  to  an  arrangement  between  the  two,  by  which 
the  principal  debtor  was  empowered  to  collect  for  both,  it  is 
held  that  the  garnishee  could  only  be  charged  with  the  share 
which  actually  belonged  to  the  debtor,  as  only  his  interest  in 
the  money  due  could  be  reached  by  garnishment.*  This  case, 
however,  belongs  to  the  class  where  strangers  to  the  action, 
being  claimants  of  the  property  attached,  may  be  brought  in 
to  defend  for  themselves ;  but  in  the  absence  of  such  measures 
being  taken,  or  in  case  they  are  not  within  reach  of  the  nec- 
essary process  for  that  purpose,  the  duty  of  maintaining -their 
claims  devolves  upon  the  garnishee. 

When  the  property  or  fund  in  which  the  defendant  has  an 
interest  is  held  by  the  party  summoned  as  garnishee,  in  the 
capacity  of  an  officer  of  the  Court,  the  decisions  are  quite 
numerous  where  it  is  held  that  he  is  for  this  reason  exempt 
from  liability.^  So  it  is  held,  generally,  that  no  one  deriving 
his  authority  from  the  law,  and  whose  duty  it  is  to  exercise 
such  authority  according  to  legal  rules,  can  be  charged  as  gar- 
nishee in  respect  to  any  money  or  property  coming  to  his  pos- 
session or  under  his  control  in  that  capacity.^  This  embraces 
executors  and  administrators,  as  well  as  others  who  hold 
money  in  an  official  capacity.''     The  guardians  of  infants  are 

3  Force  v.  Brown,  32  N".  J.  Eq.  118;  Mcllvaine  v.  Lancaster,  42  Mo.  96. 

4  Bowler  v.  European  etc.  R.  Co.,  G7  Me.  395. 

5  Turner  u.  Fendall,  1  Crancli,  117  ;  Dawson  ?'.Holeombe,10bio,  135;  13  Am. 
Dec.  618;  First  v.  Miller,  4  Bibb.  (Ky.)  311;  Dubois  v.  Dubois,  6  Cow.  494; 
Prentiss  v.  Bliss,  4  Vt.  513;  24  Am. Dec.  013;  Eeddickw.  Smith,  4111.  451;  Wild- 
er V.  Bailey,  3  Mass.  289;  Eobinson  v.  Howard,  7  Cnsliing,  257;  Morris  v.  Pen- 
niman,  14  Gray,  220;  Hill  v.  La  Crosse  etc.  E.  Co.,  14  Wis.  291;  Farmers'  Bank 
V.  Beaston,  7  Gill  &-  J.  421;  28  Am.  Dec.  226;  Doane  v.  McGavock,  7  Humph. 
132;  Marvin  v.  Hawley,  9  Mo.  382;  43  Am.  Dec.  547;  Ross  v.  Clarke,  1  Dall, 
354;  Hunt  v.  Stevens,  3  Iredell,  365;  Mnrrell  v.  Johnson,  3  Hill,  (S.  C.)  12; 
Glenn  v.  Gill,  2  Md.  1.  Contra,  Hurlburt  v.  Hicks,  17  Vt.  193;  44  Am.  Dec.  329  ; 
Crane  v.  Freese,  1  Harrison  (N.  J.),  305;  Woodbridge  w.  Morse,  5N.  H.  519. 

6  Brooks  V.  Cook,  8  Mass.  246.    But  see  Phelan  v.  Ganbin,  5  Col.  14. 

■^  Millison  v.  Fisk,  43  111.  112;  Bivens  v.  Harper,  69  111.  21;  Roth  v.  Hotard, 


149  EXTENT   OF   GAENISHEE'S   DEFENSE.  §   405 

regarded  as  deriving  their  authority  from  the  same  source  as 
executors  and  administrators,  and  are  for  this  reason  exempt 
from  garnishment  in  respect  to  any  money  or  property  coming 
to  their  possession  by  virtue  of  such  authority^  There  are 
some  modifications  of  this  doctrine,  which  will  be  noticed  when 
we  come  to  consider  that  branch  of  the  subject  to  which  they 
belong.^  It  is  sufficient  for  present  purposes  to  say  that  when 
this  defense  is  available,  it  should  be  interposed  by  the  gar- 
nishee himself,  and  when  contested,  must  be  maintained  for 
his  own  security.^ 

The  true  test  of  garnishee's  obliofation  to  defend  the  action 
brought  against  him  by  plaintiff  is,  whether  he  may  be  an  in- 
different spectator  without  danger  to  his  own  interest.  If  he 
is  so  situated  that  tlie  judgment  against  him  will  be  a  complete 
protection  against  any  subsequent  demand  made  upon  him  by 
his  creditor,  or  any  creditor  of  such  creditor,  he  need  concern 
himself  with  the  matter  no  farther.  If,  under  the  statute,  or 
the  construction  it  has  received  from  the  Court,  the  garnishee 
may  be  held  liable,  irrespective  of  the  capacity  in  which  he 
holds  the  property  of  defendant,  when  the  rights  of  others  will 
not  be  thereby  prejudiced,  he  will,  of  course,  be  required  to 
make  no  defense  on  this  ground. 

§  405.  Other  Matters  of  Defense  io  Grarnlslimeiit  Proceed- 
ings.— There  are  other  matters  that  the  garnishee  may  interpose 
as  a  defense,  and  in  some  of  the  States  it  is  held  he  must  do 
so,  unless  the  defendant  be  personally  present  and  waive  them. 
There  are  still  other  defenses  which  it  seems  to  be  permitted 

32  La.  An.  280;  Sime's Estate  v.  Myrick'sProb.,Eep.  (Cal.)lOO;  Colby  w.  Coates, 
G  Cusb.  558;  Tbayer  v.  Tyler,  5  Allen,  9i;  Brooks  v.  Cook,  8  Mass.  264;  Con- 
way t'.  Armlngton,ll  R.  I.  116;  Waite  v.  Osborne,  11  Me.  185;  Parker  v.  Don- 
nelly, 4  W.  Va.  648;  Tborn  v.  Woodruff,  5  Ark.  55;  Marvel  v.  Houston,  2  Har- 
rington, 349;  Wlncbell  v.  Allen,  1  Conn.  385;  Barnett  v.  "Weaver,  2  Wbart.  332; 
Harmon  i-.  Birchard,  8  Blackf.  418;  Higbtower  v.  Slaton,  54  Ga.  108;  21  Am. 
Eep.  273:  Rollo  v.  Andes  Ins.  Co.,  23  Gratt.  509;  14  Am.  Rep.  147;  Adams  v. 
Lane,  .38  Vt.  640;  Sbewell  v.  Keen,  2  Wbart.  332;  Stratton  v.  Ham,  8  lud.  84; 
Woodward)'.  Woodward,  ON.  J.  L.  115;  Postr.  Love,  19Fla.  6.34;  Case  Tbresb- 
ing  Mach.  Co.  v.  Merocle,  54  Wis.  295. 

"  Perry  v.  Thornton,  7  R.  I.  15;  Gassettw.  Grant,  i  Met.  (Mass.)  486;  Hansen 
V.  Butler,  48  Me.  81. 

8  Post.  Ch.  XXXIL 

9  Harman  v.  Birchard,  8  Blackf.  418. 


§   405  EXTENT   OP   garnishee's   DEFENSE.  150 

to  the  garnishee  to  make  or  waive  at  his  option,  without  incur- 
ring additional  liability.  Thus,  under  a  statute  that  declared 
that  "  every  attachment  issued  without  bond  and  affidavit  tak- 
en and  returned  is  illegal  and  void,"  it  was  held  that  a  judg- 
ment against  a  garnishee,  where  the  bond  and  affidavit  had  not 
been  taken  and  returned  as  prescribed,  was  void,  and  was  no 
bar  to  a  subsequent  suit  by  the  j^rincipal  debtor  against  the 
garnishee.^  This  clearly  indicates  that,  at  least  in  the  absence 
of  personal  service  on  the  defendant,  or  his  appearance,  the 
garnishee  must  for  his  own  security  defend  the  action.  So 
where  the  statute  under  which  the  proceeding  was  instituted  had 
been  repealed,  this  was  regarded  as  a  conclusive  defense,  which 
the  garnishee  should  interpose.^  The  insufficiency  of  the  affi- 
davit has  been  held,  in  Maryland,  a  complete  defense  to  the 
proceeding  against  the  garnishee,^  and  in  the  same  State 
he  may  defeat  the  proceeding  as  against  himself  by  a  suc- 
cessful traverse  of  the  grounds  upon  which  the  writ  issued.* 
The  garnishee  may  also  contest  the  validity  of  the  proceedings 
against  defendant,  upon  grounds  that  are  not  generally  regard- 
ed as  affecting  the  jurisdiction  of  the  Court.^ 

iFord  V.  Hurd,  4  Sm.  &  M.  683;  Oldham  v.  Ledbetter,  1  How.  (Miss.)  43; 
26  Am.  Dec.  G90;  Ford  v.  "Woodward,  2  Smeeds  and  Marslu  260;  Berry  v.  An- 
derson, 2  How.  (Miss.)  649. 

-  Featherstone  v.  Compton,  8  La.  An.  285. 

8  Shivers  v.  Wilson,  5  Har.  &  J.  130;  9  Am.  Dec.  497;  Bruce  v.  Cook,  6  Gill  & 
J.  345;  Yerby  v.  Lackland,  6  Har.  &  J.  446. 

*  Barr  v.  Perry,  3  Gill.  313. 

6  Stone  V.  Magruder,  10  Gill  &  J.  383;  32  Am.  Dec.  177.  See  also  Clark  v. 
Meixsell,  29  Md.  221. 


CHAPTER  XXX 

garnishee's  LIABILITY  IN  RESPECT  TO  PERSONAL  PROPERTY 
IN  HIS  POSSESSION. 

§  406.    General  remarks. 

§  407.    The  kind  of  property  that  may  or  may  npt  be  the  subject  of  garnish- 
ment— Effects— Credits — Choses  in  action. 
§  408.    Shares  in  capital  stock  of  corporations. 

§  409.    Garnishee  not  chargeable  in  respect  to  exempt  personal  property. 
§  410.    Defendant's  interest  in  the  projierty  in  garnishee's  possession. 

§  406.  General  Remarks. — Hitherto,  we  have  considered 
those  features  of  the  proceeding  by  garnishment  which  seemed 
in  a  manner  preliminary  and  common  to  the  two  general  divis- 
ions, viz  :  1.  The  liability  incurred  by  the  garnishee  in  conse- 
quence of  having  in  his  possession  or  under  his  control  specific 
articles  of  personal  property  which  belong  to  defendant.  2. 
His  liability  in  consequence  of  being  indebted  to  defendant. 
It  is  now  proposed  to  discuss  these  two  branches  of  the  law 
separately,  as  far  as'  each  possesses  features  peculiar  to  itself. 

Where  the  liability  arises  from  the  possession  of  property,  it 
does  not  follow  that  defendant  would  have  a  present  cause  of 
action  against  the  garnishee.  The  hitter's  liability  does  not 
depend  upon  his  sustaining  such  relations  toward  the  defend- 
ant as  to  be  liable  to  an  action  for  the  recovery  of  the  property. 
He  may  have  the  right  of  possession  in  all  respects  as  though 
he  owned  the  property,  so  that  it  would  require  a  demand  up- 
on him  before  the  proprietor  could  dispossess  him,  and  still  his 
liability  to  judgment  will  not  depend  upon  any  such  demand. 

Garnishment  is  not  the  exclusive  mode  of  attachment  in  all 
cases  where  it  is  sought  to  reach  specific  property  in  the  pos- 
session of  some  one  other  than  the  owner.  It  may  be  so  held 
that  it  can  be  actually  seized,  or  attached  by  garnishment,  as 
the  plaintiff  may  elect.  When  attached  by  the  latter  mode, 
the  power  over  it  secured  by  process  more  nearly  approaches 
the  specific  lien  secured  by  direct  levy,  than  where  the  garnish- 


§  407  gaknishee's  liability.  152 

nicnt  is  in  respect  to  a  debt.  The  garnishee  becomes  tbc  cus- 
todian of  the  pi'operty,  pending  the  action,  subject  to  the  duty 
of  using  the  same  degree  of  care  in  respect  thereto  that  lie 
Avouhl  owe  to  tlie  owner  of  the  property  in  the  absence  of  the 
garnishment.  He  may  satisfy  the  judgment  against  himself, 
bv  delivering  the  property  to  the  officer,  or  paying  the  debt 
found  due  from  defendant.  The  service  of  process  does  not 
interrupt  the  customary  use  of  the  propert}',  subject  only  to 
such  restrictions  as  would  apply  in  case  he  still  held  it  of  de- 
fendant, and  not  subject  to  the  judgment  in  the  pending  action. 
Although  no  specific  lien  attaches  to  the  property,  as  in  case 
of  a  direct  levy,  the  garnishee  enhances  his  responsibility  by 
parting  with  the  possession  after  service,  except  under  direc- 
tion of  the  Court.  Should  he  convert  it  to  his  own  use,  he 
does  so  at  the  risk  of  rendering  himself  liable  for  the  whole 
amount  of  the  debt,  or  the  estimated  value  of  the  property,  ir- 
resi)ective  of  what  he  may  have  realized  by  its  conversion. 
To  this  extent  the  process  operates  as  a  lien, 

§  407.  The  Kind  of  Property  that  may  or  may  not  be  t'he 
subject  of  Garnishment. — Effects — Credits — Choses  in  Action, — 
It  seems  almost  needless  to  state  that  a  person  can  only  be  gar- 
nished in  res])ect  to  chattels.  It  is  not  essential  that  they  shall 
be  in  a  condition  for  present  delivery.  Indeed,  there  are  cer- 
tain kinds  of  personal  property,  as  growing  crops  and  the  like, 
■which,  under  some  of  the  statutes,  are  rendered  subject  to  at- 
tachment by  process  similar  to  garnishment,  for  the  reason  that 
they  cannot  be  actually  seized  and  removed  without  deteriora- 
tion.^ But  garnishment  in  respect  to  real  property  would  be 
an  idle  ceremony,  for  the  reason  that  the  object  of  attachment 
is  merely  to  secure  the  anticipated  judgment ;  and  this  is  bet- 
ter accomplished  by  obtaining  a  lien  upon  the  title,  than  by 
disturbing  the  owner's  j^ossession.  The  title  to  real  estate  is 
susceptible  of  documentary  proof,  and  is  generally  a  matter  of 
})ubric  record.  Record,  therefore,  is  at  once  the  most  effective 
and  cxjjeditious  mode  of  securing  a  lien  upon  the  title  to  real 
estate,  and  garnishment  would  be  both  inapt  and  inconvenient. 

One  characteristic,  which  it  is  generally  held  that  personal 

1  Code  Civ.  Proc.  Cal.,  §  5i2,  Subd.  5. 


153  POSSESSION   OF    PROPERTY.  §   407 

property  must  li.ivc  in  order  to  render  one  in  possession  cliarge- 
able  as  garnishee,  in  an  action  against  the  owner,  is,  that  it 
shall  be  capable  of  being  taken  and  sold  on  execution.  And 
for  the  reason  that  chases  in  action  do  not  possess  this  (puility, 
they  are  generally  excluded  from  the  class  of  attachable  ef- 
fects^ Under  circumstances  favorable  to  a  definite  ascertain- 
ment of  the  right  of  i)ro])erty  as  that  of  defendant,  the  amount 
due  on  a  promissory  note  may  be  attached  by  garnishment  of 
the  party  from  whom  it  is  due  ;  ^  but  t!iis  is  quite  different 
from  garnishment  of  a  party  who  has  the  note  in  possession. 
Such  possession  does  not  make  him  the  debtor  of  the  payee, 
nor  is  he  regarded  as  liable  to  garnishment  as  the  holder  of 
defendant's  ,tangible  property.^  So  it  is  held  that  a  contract 
by  which  the  garnishee  promised  to  deliver  to  ti)e  defendai;it 
at  a  future  day  a  certain  quantity  of  cotton,  was  neither  a  lia- 
bility to  defendant,  for  which  the  latter  might  maintain  an  ac- 
tion of  debt  or  indebitatus  assumpsit,  nor  the  possession  of 
specific  property  of  defendant,  which  the  garnishee  failed  to 
deliver  to  the  officer  on  demand  ;  and  as  these  two  classes 
embraced  all  the  cases  where  judgment  might  be  rendered 
against  the  garnishee,  the  Court  had  no  power  to  extend  the 
statutory  remedy  to  the  future  liability.^  Books,  debts,  prom- 
issory notes,  and  other  choses  in  action,  in  the  possession  of 
assignees  for  the  benefit  of  creditors,  under  circumstances  that 
would  have  rendered  them  liable  to  garnishment  in  case  they 
had  been  in  possession  of  goods  and  chattels  or  money,  would 

2  Fitch  V.  Waite,  5  Conn.  117;  Lupton  v.  Cutter,  8  Pick.  298;  Gore  v.  Clisby, 
8  Piclv.  555;  Maine  F.  «&  M.  Ins.  Co.  v.  Weeljs,  7  Mass.  438;  Diclcinson  v. 
Strong,  4  Pick.  57;  Guild  v.  Holbrook  11  Pick.  101,;  Meacliara  v.  McCorbitt,  2 
Met.  (Mass.)  352;  Fletclier  v.  Fletclier,  7  N.  H.  452;  28  Am.  Dec.  350;  New 
Hampshire  etc.  Go.  v.  Piatt,  5  N.  H.  193.  See  Campbell  v.  Nesbitt,  7  Neb. 
300. 

3  See  Post,  Ch.  XXXVI. 

4  Perry  v.  Coates,  9  Mass.  537;  Andrews  v.  Ludlow,  5  Pick.  28;  Hopkins  v. 
Ray,  1  Met.  (Mass.)  79;  Stone  i\  Dean,  5  N.  H.  502;  Howland  v.  Spencer,  14 
N.  11.  530;  Mahew  v.  Scott,  10  Pick.  511;  Deacon  v.  Oliver,  14  How.  610;  Hitch- 
cock V.  Edgertou,  8  Vt.  202;  Van  Amee  v.  Jackson,  35  Vt.  173;  Fuller  v.  Jew- 
ett,  37  Vt.  473;  Clark  v.  Viles,  32  Me.  32;  skowhegan  Bank  v.  Ferrar,  46  Me. 
293;  Grosvenor  v.  Farmers'  etc.  Bank,  13  Me.  104;  Marston  v.  Carr,  16  Ala.  325; 
Wilson  V.  Albright,  2  G.  Greene,  125;  Moore  v.  Pillow,  3  Humph.  448;  Taylor 
V.  Gillian,  23  Tex.  508. 

6  Jones  V.  Crews,  64  Ala.  368;  Fitch  v.  Waite,  5  Conn.  117;  Andrews  v.  Lud- 
low, 5  Pick.  28. 


§  407  garnishee's  liability.  154 

not  render  them  liable  to  be  charged  as  garnishees.^  Such 
accounts  are  held  to  be  embraced  in  the  meaning  of  the  term 
"  credits."  and  may  be  reached  by  garnishment  served  on  the 
debtors  ;  but  they  cannot  be  attached  as  "  effects,"  mentioned 
in  the  statute  by  service  of  process  on  the  assignee,  even  where 
such  assignment  is  fraudulent  and  void  as  to  creditors.'  One 
who  had  taken  a  note  due  defendant  for  collection,  and  had 
recovered  judgment  in  his  own  name,  was  held  exempt  from 
garnishment  on  account  thereof,  in  a  suit  against  the  party  for 
whom  the  collection  was  undertaken.^  And  this  doctrine  was 
held  unaffected  by  a  statute  to  the  effect  that  a  judgment  in 
favor  of  defendant  might  be  sold  on  execution.^ 

It  is  held  in  an  early  case  in  New  Hampshire,  tjiat  bank  bills 
may  be  attached  by  virtue  of  a  writ,  and  seized  and  sold  on 
execution.-^*'  So  money  in  specie  is  attachable  by  seizure,  and 
no  sale  is  necessary.^^  The  same  is  true  of  United  States 
Treasury  notes. ^^  And  even  of  current  bank  bills  that  circu- 
late as  money.-^^  But  when  money  is  reached  by  garnishment, 
the  title  to  the  specific  pieces  in  the  possession  of  the  garnishee 
is  not  necessarily  affected.  The  garnishee  may  generally  an- 
swer as  one  indebted,  and  pay  over,  when  fully  protected  in 
doing  so,  the  amount  so  held  by  him  in  any  money  that  is  at 
the  time  legal  tender  for  debts.^'*  But  when  the  garnishee  has 
in  his  possession  the  circulating  notes  of  a  bank  that  have  be- 
come uncurreut  by  presentation  for  payment,  and  payment  re- 
fused, they  cease  to  be  regarded  as  money,  but  as  mere  prom- 
issory notes,  negotiable  by  delivery,  and  hence  the  party  having 
them  in  possession  will  not  be  chargable.^"     A  bank  was  sum- 

6  Lupton  V.  Cutter,  8  Pick.  298;  Copeland  v.  Weld,  8  Me.  411. 

'  Ide  1-.  Harwood,  30  Minn.  191. 

SRundlet  v.  Jordan,  3  Me.  47.  See  also  Hitchcock  v.  Egerton  8  Vt.  202; 
Wilson  V.  Wood.  34  Me.  123;  Smith  v.  Kennebec  etc.  R.  Co.,  45  Me.  547;  Bow- 
ker  V.  Hill,  60  Me.  172;  Jones  t'.  Xorris,  2  Ala.  526;  Pearce  v.  Shorter,  50  Ala. 
318;  Eaiguel  v.  McCounell,  25  Pa.  St.  362;  Allen  i-.  Erie  City  Bank.  57  Pa.  St. 
129;  Price  v.  Brady,  21  Tex.  614;  Ellison  v.  Tuttle,  26  Tex.  283;  Tirrell  v.  Can- 
ada, 25  Tex.  455. 

9  Mayes  v.  Phillips,  6  Miss.  547. 

If  Spencer  v.  Blaisdell,  4  :S.  H.  198;  17  Am.  Dec.  412. 

11  Sheldon  v.  Root,  16  Pick.  567;  28  Am.  Dec.  266. 

12  State  V.  Laijrson,  7  Ark.  391;  How  v.  White,  49  Cal.  658. 

13  Lovejoy  v.  Lee,  35  Yt.  430;  Morrill  v.  Brown,  15  Pick.  173. 

1*  The  exception  to  this  is  where  the  money  is  a  special  deposit. 
15  Perry  v.  Coates,  9  Mass.  537. 


155  POSSESSION    OF   PROPERTY.  §    407 

nioned  as  garnishee  in  a  suit  against  another  bank,  and  it  ap- 
peared that  there  was  an  arrangement  between  the  two,  by 
wliich  the  garnishee  was  in  the  habit  of  taking  up  the  bills  of 
the  debtor  bank,  in  the  usual  course  of  business,  charging  the 
amount  to  it,  and  returning  the  bills  as  they  accumulated  to 
the  bank  whence  they  were  issued ;  and  that  to  meet  the 
amounts  thus  charged,  it  was  the  custom  of  the  defendant  to 
place  funds  with  the  garnishee  to  balance  the  account.  At 
the  time  of  service  of  process,  the  garnishee  bank  had  in  its 
possession  a  considerable  amount  of  these  bills,  and  the  Court 
held  that  it  must  be  considered  either  as  the  agent  of  the  bank 
of  issue,  or  as  the  holder  of  the  bills  on  its  own  account,  for 
value,  and  entitled  to  hold  them  as  vouchers  to  prove  the  cor- 
rectness of  the  charges  in  its  account.  In  either  case  the 
holder  could  not  be  charged  as  garnishee  ;  in  tlie  first,  for  the 
reason  that  the  bills  were  taken  u])  out  of  funds  provided  by 
the  principal  for  that  purpose,  by  which  they  ceased  to  be  bills 
circulating  as  money,  and  became  mere  choses  in  action;  in 
the  second,  for  the  reasons  already  stated.'^  One  holding  a 
check,  with  authority  to  draw  the  money  and  pay  it  to  the  de- 
fendant, cannot  be  held  as  garnishee  in  respect  to  such  check, 
even  after  the  conditions  upon  which  the  money  was  to  be 
paid  have  been  fully  complied  with,  when  he  has  not  yet  drawn 
the  money.  Until  then  he  is  not  the  debtor  of  the  defendant, 
nor  has  he  any  of  defendant's  property  in  his. possession. ^^^ 

But  the  doctrine  that  releases  the  garnishee  from  liability 
where  he  only  has  in  his  possession  choses  in  action  of  the  de- 
fendant, is  sometimes  varied  to  prevent  an  evasion  of  the  law. 
Thus,  where  an  insolvent  firm  placed  in  the  hands  of  an  agent 
for  collection  a  number  of  demands  in  their  favor,  with  direc- 
tions to  take  charge  of  the  proceeds  so  as  to  secure  them 
against  attaclunent,  and  pay  a  dividend  therefrom  to  such  of 
the  firm's  creditors  as  would  compound  their  debts  and  dis- 
charge the  debtors  ;  and  the  agent  accepted  an  order  drawn  by 
the  firm  to  pay  the  money  collected  to  the  order  of  a  member 
of  the  firm,  and  lent  to  different  persons  the  sums  collected  by 

w  Wildes  V.  Nahant  Bank,  20  Pick.  352. 

"  Lane  v.  Felt,  7  Gray,  491.    See  also  Knigbt  v.  Bowley,  117  Mass.  551; 
Hancock  v.  Colyer,  99  Mass.  187. 


§  407  garnishee's  liability.  156 

him,  so  that  when  summoned  as  garnishee  he  had  notliing  in 
ills  hands  but  the  residue  of  uncollected  demands  and  notes 
taken  from  parties  to  whom  the  money  was  loaned  liy  him, 
notwithstanding  which  he  paid  a  dividend  by  order  of  a  mem- 
ber of  the  insolvent  firm  to  the  compounding  creditors ;  it 
was  held  that  the  fact  that  the  money  collected  had  been  lent 
and  notes  taken  therefor  made  no  difference  as  to  the  gar- 
nishee's liability.  He  was  held  to  have  become  liable  for  the 
money  from  the  time  of  its  receipt,  though  that  was  prior  to  gar- 
nishmentj  and  could  not  avoid  such  liability  by  changing  the 
form  of  the  deposit  into  choses  in  action.^^  The  reason  of  this 
ruling  is  manifestly  that  the  assignment  was  in  itself  fraudu- 
lent in  fact  as  to  creditors,  and  the  mutations  through  which 
the  property  passed  were  simply  a  succession  of  subterfuges 
to  circumvent  creditors  who  might  wish  to  attach. 

Railroad  bonds,  which  had  been  pledged  as  collateral  secur- 
ity for  a  debt  were  held  not  subject  to  garnishment  in  the 
hands  of  an  officer  of  the  corporation,  after  the  debt  was  dis- 
charged and  the  bonds  were  surrendered  to  the  Railroad  Com- 
pany, for  the  manifest  reason  that  they  were  not  property  of 
the  Company,  nor  of  any  value  except  in  the  hands  of  one  who 
held  tiiem  against  the  obligor. ^^ 

Tliis  exemption  of  choses  in  action  is  not  the  result  of  any- 
thing inherent  in  property  of  this  description,  which  renders  it 
sacred  from  seizure  and  -condemnation.  It  will  probably  not 
be  questioned  that  the  legislature  might,  without  violating  any 
princi[)le,  or  depriving  any  one  of  a  valuable  right  or  immuni- 
ty, authorize  the  attachment  of  choses  in  action  precisely  as 
other  property.  In  some  States  they  probably  have  done  so. 
They  might  also  bring  the  proceeds  of  promissory  notes,  etc., 
within  reach  of  attaching  and  judgment  creditors  by  authoriz- 
ing further  proceedings  where  effects  of  this  kind  were  dis- 
closed. The  reason  the  Courts  hold  as  above  indicated  is, 
that  the  proceeding  is  purely  statutory,  and  must  be  con- 
fined in  its  operations  strictly  to  the  subjects  to  which  it  is 
made  applicable.  It  cannot  be  extended  by  the  Courts  to  other 
matters.     By  a  strict  construction  of  the   statute,  the   Courts 

IS  Hooper  v.  Hills,  9  Pick.  435. 

^  Galena  etc.  E.  Co.  v.  Stahl,  103  111.  67. 


157  POSSESSION  or  tropertt.  §  408 

reach  the  conclusion  that  chases  in  action  are  not  Included  in 
the  general  terms  of  the  statute. 

With  the  exception  of  the  property  hereinbeforem  entioned 
as  excluded,  the  garnishee  will  be  held  in  respect  to  his  pos- 
session or  control  of  any  kind  of  chattel  that  has  value. 

§  408.  Shares  in  Capital  Stock  of  Corporations. — There  Is 
little  doubt  that  a  dividend  being  declared  by  a  corporation, 
the  proportion  due  any  one  of  its  shareholders  might  be  reached 
by  garnishment  in  an  action  bro'ight  under  the  attachment  law, 
or  in  aid  of  an  execution  against  such  shareholder.  There  are  also 
special  statutory  provisions  in  some  of  tlie  States,  for  reaching 
in  this  manner  the  defendant's  or  debtor's  interest  in  the  capita] 
stock  of  the  corporation.  But  unless  there  is  something  more 
in  the  statute  than  authority  to  summon  as  garnishees  all 
debtors  of  the  defendant,  or  persons  having  in  their  possession 
or  under  their  control  any  of  his  property,  effects,  or  credits, 
the  defendant's  interest  in  a  corporation,  as  indicated  by  the 
shares  of  stock  standing  in  his  name,  cannot  be  reached  by  gar- 
nishment of  the  officers  of  the  corporation.^  The  corporatiori 
has  In  its  possession  no  property  of  the  shareholder,  merely  by 
the  force  of  his  right  to  participate  in  its  profits.^  It  is  not  by 
reason  of  his  interest  indebted  to  him.  The  coi^porate  proper- 
ty belongs  to  the  corporation,  and  not  to  the  individual  stock- 
holdei's.  Subscription  to  the  capital  stock  establishes  the  rela- 
tion of  debtor  and  creditor  in  favor  of  the  corporation,  and 
when  the  amount  of  the  subscription  is  paid,  it  discharges  such 
indebtedness,  and  does  not  create  one  in  favor  of  the  subscrib- 
er.3 

Where  one  has  possession  of  the  certificates  which  represent 
the  shares  of  defendant,  he  Is  not  for  that  reason  a  proper  par- 
ty to  be  summoned  as  garnishee,  as  having  in  his  possession 
the  property  of  defendant,  for  the  reason  that  mere  possession 
of  such  certificates  does  not  transfer  either  the  title  or  the  pos- 

iRoss  V.  Ross,  25  Ga.  297  ;  Johns  v.  Johns,  1  Ohio  St.  350  ;  Denny  v.  Hamil- 
ton, l(j  Mass.  402. 

2  Ross  V.  Ross,  25  Ga.  297  ;  Planter's  etc.  Bank  v.  Leavens,  4  Ala.  753. 

8  Upton  V.  Tribilcock,  91  U.  S.  45  ;  Conn.  etc.  R.  Co.  v.  Kerr,  17  Barb.  581 ; 
Dayton  v.  Borst,  31  X.  Y.  435  ;  Rockville  etc.  Turnp.  Road  v.  Maxwell,  2  Crancb 
C.  C.  451  ;  Manstield  etc.  R.  Co.  v.  Hall,  2G  Ohio  St.  310i 


§  408  garnishee's  liability.  158 

session  of  the  property  in  the  stock.  It  may  serve  as  a  check 
upon  the  stockholder's  ability  to  transfer  his  interest;^  but  un- 
til the  certificates  are  indorsed  by  the  stockholder,  nothing 
passes  by  their  delivery  beyond  this  physical  control  of  hia 
means  of  transferring  title.  And  even  the  indorsement  does 
not  always  operate  as  such  transfer,  unless  so  intended,  as  the 
certificates  are  not  negotiable  paper. ^  The  transfer  of  title  is 
only  accomplished  by  such  indorsement  and  delivery,  when  it 
amounts  to  a  direction  to  "mijike  the  transfer  on  the  books  of 
the  company.*^  When  it  is  held  that  the  interest  of  a  share- 
holder in  a  corporation  may  be  reached  by  his  creditors,  by 
means  of  the  process  of  garnishment,  it  will  be  found  on  ex- 
amination that  there  is  some  provision  in  the  statute  for  this 
purpose  beyond  the  general  authority  to  summon  garnishees. 
In  Virginia  it  is  held,  that  stock  in  a  corporation  is  an  estate 
liable  to  seizure  in  attachment,  and  for  the  purposes  of  the  pro- 
ceedings, which  may  be  at  law  or  in  equity,  the  corporation 
may  be  considered  as  in  j^ossession  thereof,  and  be  summoned 
as  garnishee.'^  AYhere  such  a  proceeding  is  warranted  by  the 
statute,  for  the  purpose  of  subjecting  defendant's  interest  in 
the  corjioration  to  the  payment  of  his  debt,  the  method  pointed 
out  by  which  this  may  be  accomplished  must  be  substantially 
followed.  Where,  in  Iowa,  the  secretary  of  the.>  corporation 
v^as  served  with  process,  which  he  understood  as  an  attach- 
ment of  the  shares  of  defendant  in  the  capital  stock  of  the  cor- 
poration, and  it  did  attach  all  the  property  of  defendant  in  his 
hands,  it  was  held  that  it  was  not  an  attachment  of  the  stock.^ 
Where  shares  of  stock  have  been  regularly  transferred  as  se- 
curity for  a  loan,  it  is  held  in  California  that  the  mortgagee  is 
the  proper  garnishee,  as  the  corporation  is  no  longer  privy  to 
the  interest  of  the  mortgagor.^  And  in  New  York  it  is  held, 
that  the  interest  of  a  shareholder  in  a  foreign  corporation  can- 
not be  attached  by  notice  to  the  company.^^ 

4 National  Bank  v.  Lake  Shore  etc.  R.  Co.,  21  Ohio  St.  221. 

6 Hall  V.  Rose  Hill  etc.  R.  Co.,  70  111.  673  ;  SLaw  v.  Spencer,  100  Mass.  382  ;  1 
Am.  Rep.  115. 

SBruce  v.  Smith,  44  Inrl.  1 ;  Leitch  v.  Wells,  48  N.  Y.  585  ;  Scripture  v.  Fran- 
cestown  Soapstone  Co.,  50  N.  H.571 ;  Bank  of  America  v.  McNeil,  10  Bush,  54. 

7  Chesapeake  etc.  R.  Co.  v.  Paine,  29  Gratt.  502. 

8  Mooar  v.  "Walker,  58  Iowa,  164. 

9  Edwards  v.  Beugnot,  7  Cal.  162. 

10  Plimpton  v.  Bigelow,  63  How.  Pr.  484. 


1^9  POSSESSION   OF  TROrERTT.  §   409 

§  409.  Grarnishee  not  Chargable  in  respect  to  Exempt  Per- 
sonal Property. — There  is,  however,  anotlier  exception  to  the 
genenil  liability  of  the  garnishee,  on  account  of  his  possession 
of  defendant's  property,  which  does  not  relate  to  any  peculiar 
qualities  of  the  thing  itself  ;  clearly,  property  which  in  the 
debtor's  hands  could  not  be  seized  and  sold  under  execution  or 
attachment.^  Thus,  where  A  received  a  check  for  his  pension 
as  a  soldier,  and  gave  it  to  his  wife,  who  by  advice  passed  it 
to  B,  and  took  his  note  therefor,  and  B  accepted  it  with  the 
knowledge  that  it  was  money  derived  from  a  pension,  and  was 
to  be  used  for  the  support  of  the  family  of  A,  or  for  the  pur- 
chase of  a  homestead  if  thought  best,  it  was  decided  that  B 
could  not  be  charged  as  gai-nishee  in  an  action  against  A.^ 
Of  course,  this  privilege  is  one  which  belongs  to  the  defendant 
liimself,  and  when  waived  by  him  cannot  be  set  up  by  the  gar- 
nishee in  defendant's  behalf  to  avoid  judgment.^  Nevertheless, 
this  is  not  saying  that  where  there  is  no  express  waiver  of  the 
exemption,  the  garnishee  is  exonerated  from  setting  it  up  in 
his  answer.^  And  when  it  appears  from  the  uncontradicted 
answer  that  the  property  in  the  hands  of  the  garnishee  is  not 
only  subject  to  exemption,  but  is  actually  so  claimed  by  the 
principal  debtor,  the  Court  cannot  render  judgment  against 
the  garnishee  in  respect  to  that  property,  without  adjudicating 
adversely  to  the  claim.^  And  even  where  the  claim  of  exemp- 
tion does  not  appear  in  the  answer,  if  the  description  of  the 
property  shows  it  to  be  specifically  exempt,  its  possession  will 
not  render  the  garnishee  chargable.^  Where  the  principal 
debtor  appears  in  the  case  for  the  purpose  of  claiming  his  ex- 
emption, and  it  appears  that  the  money  attached  is  the  pro- 

1  In  some  instances,  the  statute  expressly  exempts  certain  property  of  the 
debtor  from  attachment  vn  mesne  i^rocess,  as  well  as  from  execution.  In  others 
the  exemption  is  only  given  in  terms  from  execution.  The  better  opinion  is, 
however  that  where  property  is  exemjit  from  execution,  it  is  also  exempt  from 
atvachment,  as  it  would  be  futile  to  allow  pro^jerty  to  be  taken  on  mesne  pro- 
cess, that  could  not  be  subjected  to  the  satisfaction  of  the  debt  when  judg- 
ment was  obtained. 

2  H:.y  wood  V.  Clerk,  50  Vt.  G12;  Adams  v.  Newell,  8  Vt.  190. 
8  Osborn  v.  Schutt,  G7  Mo.  712. 

*  Ante,  §401. 

6  Davenport  v.  Swan,  9  Humph.  186;  Fanning  v.  First  Nat'l  B'k,  76  111.  53; 
Staniels  v.  Raymond,  4  Cush.  314. 
6  Davenport  c.  Swan,  9  Humph,  186. 


§  409  garnishee's  liability.  IGO 

ceeds  of  a  hoinesteatl,  this  fact  being  established  wouhl  put  an 
end  to  the  garnishment  proceedings."  In  some  of  the  States, 
however,  this  principle  of  substitution  seems  to  be  confined  to 
cases  where  the  property  is  converted  into  money  by  some  sort 
of  Involuntary  sale,  and  does  not  extend  to  sales  made  by  the 
debtor  himself.^  This  exception,  however,  is  not  at  all  general 
or  uniform  in  its  application.  In  many  of  the  States,  ample 
provision  will  be  found  in  the  exemption  laws  for  the  volun- 
tary sale  of  exempt  property,  and  the  immunity  follows  it  in 
the  changed  form.^  In  New  Hampshire  it  is  held,  that  where 
exempt  property  is  insured,  in  case  of  loss  the  exemption  does 
not  follow  the  proceeds,  but  the  insurer  may  be  charged  as 
garnishee  in  an  action  by  creditors  of  the  insured. ^^  This,  how- 
ever, is  contrary  to  the  doctrine  laid  down  in  California,  where 
it  is  held  that  insurance  money  payable  on  the  loss  of  a  home- 
stead is  not  liable  to  garnishment.^^  But  in  Iowa  it  is  held, 
that  money  received  from  a  pension  and  deposited  in  a  bank 
may  be  attached  by  service  of  garnishment  on  the  banker.^^ 
Even  where  the  answer  is  made  setting  up  the  exemption  in 
defendant's  behalf,  the  garnishee  will  not  always  be  held  to 
have  discharged  his  whole  duty.  He  may  be  required  to 
maintain  the  truth  of  the  answer  against  plaintiff's  traverse.'^ 

7  Horton  v.  Summers,  62  Ga.  302;  Gery  v.  Ehrgood,  31  Pa.  St.  329;  IMitchell 
V.  Milhoau,  11  Kan.  G17. 

s  Scott  u.  Brigham,  27  Vt.  561;  Knabb  v.  Drake,  23  Pa.  St.  489. 

9  Keys  V.  Rines,  37  Yt.  263;  Watkins  v.  Blatcliinski,  40  Wis.  .347. 

1"  ■\Voosfer  v.  Page,  .54  N.  H.  125;  20  Am.  Rep.  128.  In  delivering  the  opinion 
m  this  case,  Foster,  J.  says.  *  *  *  "It  was  doubtless  a  great  misfortune,  but 
it  was  one  of  those  misfortunes  for  the  relief  of  whicli  the  legislature  has 
made  no  provision.  It  is  the  furniture,  and  not  the  avails  of  it  in  another 
form,  which  is  protected.  When  the  property  is  consumed,  it  is  no  longer 
household  furniture  in  the  possession  of  the  debtor,  nor  did  it  become  house- 
hold furniture  of  the  debtor  in  the  hands  of  the  Insurance  Company.  The 
supposed  trustees  had  no  specific  chattels  of  the  defendant  in  their  hands,  nor 
were  they  his  debtors  for  any  wages  due  him  or  his  family  for  personal  labor. 
What  is  in  the  hands  of  the  Insurance  Comiiany  belonging  to  the  defendant, 
is  money  having  no  ear-mark  by  which  it  may  be  distinguished  from  any  other 
money,  and  not  derived  by  any  process  of  transmutation  from  the  ashes  of 
the  defendant's  goods;  and  hence  the  exemption  which  before  existed  by  stat- 
ute cannot  follow  and  appertain  to  this  indebtedness  of  the  Insurance  Com- 
pany. 

11  Houghton  V.  Lee,  50  Cal.  101.    See  also  Cooney  v  Cooney,  65  Barb.  524. 

i'^  Webb  V.  Holt,  57  Iowa,  712. 

13  Ante,  §  401. 


IGl  POSSESSION    OF   PROPERTY.  §   4 19 

Especially  will  it  be  so  held,  where  the  Jebtar  hus  not  been 
personally  served,  or  brought  into  the  case  so  as  to  be  able  to 
maintain  the  claim  for  himself.  But  when  notified,  it  is  the 
duty  of  the  defendant  to  furnish  the  garnishee  with  evidence 
of  the  facts  that  entitle  him  to  exemption  ^  otherwise,  the  gar- 
nishee will  be  protected  by  the  judgment  which  in  effect  dis- 
allows the  claim. ^^ 

By  whomsoever  made^  the  claim  for  exemption  to  be  allowetl 
must  be  under  the  laws  of  the  State  where  the  pro-ceeding  is 
pending.'^  And  if  the  defendant  fails  to  make  the  claim  as 
required  until  after  judgment  is  rendered  against  the  garnishee, 
it  will  in  some  cases  be  too  iate."^ 

§  410.  Defendant's  Interest  in  the  Property  in  (jarnisliee's 
Possession. — The  sei*vice  of  summons  in  garnishment  can  only 
affect  the  garnishee,  or  render  him  liable,  to  the  extent  of  the 
defendant's  interest  in  the  pro[:K3rty  that  he  (the  garnishee) 
has  in  }X>ssession  or  under  his  control  when  served,  unless 
under  a  peculiar  statute  that  makes  him  chr.rgable  for  prop- 
erty coming  to  his  possession  prior  to  the  answer.  In  any  event, 
the  liability  will  be  limited  by  defendant's  actual  interest  in 
the  property.^  Where  the  language  of  the  statute  is  such  that 
only  legal  interests,  as  distinguished  from  those  that  are  e(]^li- 
tahle  in  their  nature,,  can  be  affected,  tiiis  furnishes  another  re- 
striction upon  the  operation  of  this  process,  in  respect  to  the 
title  to  the  pro^^erty.^  But  if  the  defendant  or  judgment  debt- 
or has  a  vendible  interest  in  the  proj>erty,  v/^hich  would  entitle 
him  or  his  assigns  to  maintain  an  action  against  the  garnishee, 
the  latter  may  be  charged  in  respect  to  its  possession.  Thus, 
where  the  mortgagee  of  chattels  had  the  same  in  possession 
and  had  not  foreclosed  his  mortgage,  it  was  held  that  the 
mortgagor  had  a  subsisting  right  of  redemption  in  the  proper- 
ty, which  was  subject  to  the  claims  of  such  mortgagor's  cred- 
itors, and  might  be  reached  by  garnishment.^      The  transfer 

"  Wigwalli;.  Union  &c.  Co.,  37  la.  129. 

15  Roclie  y.  PJiocle  Island  Ins.  Co.,  2  111.  App.  360. 

i<^  Eaudolpli  V.  Little,  02  Ala.  39(3. 

1  Albany  City  Ins.  Co.  v.  Whitney,  70  Pa.  St.  2i8;  Phelps  u.  Atcheson  etc. 
R.  Co.,  28  Kan.  103 

2  Bills  V.  Nat'l  Park  Bank,  47  N.  Y.  Sup'r  Ct.  302. 

3  Becker  v.  Dunham,  27  Minn.  32;  Burnham  i'.  Doolittle,  li  Neb.  214.    And 

II.  Attach.— 11. 


§  410  garnishee's  liability.  162 

of  the  property  before  service  of  process,  of  wlilcli  the  gar- 
nishee has  notice,  is  sufficient  to  discharge  the  garnishee  as 
soon  as  this  fact  is  judicially  ascertained.*  In  order  that  the 
garnishee  may  be  charged  in  respect  to  his  possession  of  prop- 
erty of  defendant,  it  is  not  necessary  that  the  property  should 
come  to  his  possession  as  the  property  of  such  defendant.  It 
is  not  even  necessary  that,  when  received,  the  defendant's  in- 
terest therein  should  be  disclosed.  But  it  is  essential  that  the 
interest  of  the  defendant  should  be  know^n  to  the  garnishee 
prior  to  transfer.  If  it  appears  that  prior  to  service  of  process 
in  garnishment,  the  party  served  received  into  his  possession 
certain  personal  property  in  which  the  defendant  had  a  con- 
cealed interest,  and  that  when  so  served,  and  thereafter  until 
answer,  he  was  ignorant  of  the  fact  that  defendant  was  in  any 
way  interested  in  such  property,  and  that  he  had  allowed  the 
property  to  pass  out  of  his  possession  and  beyond  his  control 
before  he  was  advised  of  defendant's  interest  therein,  such  gar- 
nishee would  not  be  held  chargable  in  respect  to  the  property 
so  held  and  innocently  disposed  of .^  If,  on  the  other  hand,  the 
property  is  apparently  owned  by  defendant  when  received  by 
the  garnishee,  who  subsequently  ascertains  that  others  are 
beneficially  intei'csted  therein,  the  garnishee  may  be  held  to 
double  liability,  in  case  he  fails  to  disclose  such  outstanding  in- 
terest,^ but  will  be  entitled  to  a  discharge  from  liability  as  gar- 
nishee on  establishing  the  fact  of  the  beneficial  interest  adverse 
to  the  defendant.'  Where,  however,  the  party  interested  in 
the  property  of  which  defendant  has  control  as  agent  or  tru'^'t^e 
is  notified  by  the  garnishee  of  the  garnishment,  or  has  knowl- 
edge thereof,  and  fails  to  interpose  his  claim  for  the  property, 
in  consequence  of  which  judgment  goes  against  the  garnishee, 
such  judgment  will  be  a  protection  against  an  action  by  the 
owner  of  the  property  who  slumbered  on  his  rights.^ 

when  the  mortgage  was  fraudulent,  the  mortgagee  could  be  held  absolutely. 
— Thompson  v.  Pennell,  G7  Me.  159. 

4  Balliet  v.  Brown,  103  Pa,  St.  546;  Schleuter  v.  Kaymond,  7  Neb.  28. 

5  Bingham  v.  Lamping,  26  Pa.  St.  340. 
^Ante,  §  402. 

"  Post,  §  416. 

e  Eaudall  v.  Way,  111  JIasa.  506. 


CHAPTER  XXXL 

POSSESSION   UPON  WHICH    GARNISHEE'S   LIABILITY   DEPENDS. 

§  411.  Possession,  whether  actual  or  constructive. 

§  412.  Actual  coutrol,  lield  more  important  than  legal  control. 

§  413.  Possession  by  a  non-resident  garnishee. 

§  414.  Garnisliee's  possession,  whether  witli  claim  of  ownership  or  not. 

§  415.  Whether  the  garnishee's  possession  is  rightful  or  otherwise. 

§  41(5.  The  ques.iou  of  defendant's  interest  in  or  title  to  the  property  attached. 

§  411.  Possession,  whether  Actual  or  Constructive. — The 
character  of  garnishee's  possession  of  specific  articles  of  de- 
fendant's property,  as  it  affects  his  liability,  presents  itself  for 
consideration  in  two  aspects.  1.  The  character  of  such  pos- 
session, as  it  rehites  to  the  control  the  party  summoned  has 
over  the  property.  2.  The  capacity  in  which  the  property  is 
held,  as  it  relates  to  the  garnishee's  identity  witli  the  owner, 
and  tlie  limitations  upon  his  direct  responsibility  to  tlie  defen- 
dant. The  first  treats  of  the  liability  of  the  garnishee  as  affect- 
ed by  his  relation  to  the  property,  and  the  second  to  his  lia- 
bility as  affected  "by  his  relations  to  others.  In  order  to  avoid 
confusion,  these  two  branches  of  the  question  of  possession, 
which  seem  so  nearly  akin  to  each  other,  will  be  discussed  in 
separate  chapters.  The  present  will  be  devoted  to  the  first, 
and  the  second  will  follow  in  order. ^ 

Owing  to  the  too  liberal  use  made  of  the  word  "  construc- 
tive," to  distinguish  possession  which  is  merely  theoretical, 
or  assumed  for  certain  purposes,  from  possession  which  is  aC' 
tual,  in  the  sense  that  it  is  manual,  or  capable  of  being  ren- 
dered so  at  the  will  of  the  possessor,  some  confusion  and  ap- 
parent conflict  of  authority  has  arisen  upon  a  feature  of  this 
branch  of  our  subject,  which  is  encountered  on  the  threshold. 
Some  difference  in  the  decisions  is  also  owing  to  the  difference 
in  the  language  of  the  statutes  under  which  they  are  rendered. 

1  Post,  Ch.  xxxn. 


§411  CHARACTER   OF   POSSESSION.  104 

But  llic  words  arc  to  8omc  extent  inapt  and  misleading.  It  is 
quite  ;:enerally  true  that  the  possession  of  personal  property  in 
res[)ect  to  which  a  party  may  be  charged  as  garnishee  must  be 
actual,  in  the  sense  that  it  must  ad;nit  of  actual  control  for  the 
time  being. ^  And  yet  it  need  not  be  manual  possession,  or 
even  personal  dominion  actually  exercised  over  the  thing. 
As  we  shall  presently  see  from  the  authorities  cited,  the 
party  will  be  regarded  as  in  possession  sufficient  to  charge 
him,  when,  by  the  liberal  manner  in  which  the  Courts  a])pro- 
priate  words  to  express  their  meaning,  such  possession  would 
be  called  constructive. 

It  cannot  be  dogmatically  laid  down,  therefore,  that  in  or- 
der to  charge  a  garnishee  on  account  of  his  possession  of  de- 
fendant's property,  such  possession  must  be  actual  and  not  cori' 
structive.  The  nature  of  the  possession  must  be  governed  to  a 
srreat  extent  by  the  peculiar  character  of  the  thing.  Thus,  a 
ship  may  be  in  the  actual  possession  of  a  party,  so  as  to  render 
him  liable  as  garnishee  of  the  owner.  But  where  a  nominal 
possession  is  delivered  by  words  or  writing,  Avhen  the  ship  is 
at  sea,  the  possession  will  not  be  regarded  as  sufficient  for  the 
purpose  of  garnishment,  before  she  has  landed.^  But  by  the 
same  Court  it  was  held  that  the  garnishee  was  properly  charg- 
able  when  he  was  only  in  possession  by  an  agent.*  This  is  the 
kind  of  possession  that  is  sometimes  called  constructive,  to  dir- 
tin<Tuish  it  from  personal  possession  or  control.  One  can  read- 
ily distinguish  the  practical  difference  between  the  kind  ot 
possession  one  may  have  of  a  horse,  or  a  ship,  Avlien  the  horse 
at  the  time  of  delivery  is  astray  on  the  plains,  or  the  ship  is  at 
sea  ;  and  that  which  is  characterized  by  the  direct  taking  or 
personal  control  by  an  agent  of  the  person  charged  with  pos- 
session of  either.  So,  when  one  merely  has  constructive  pos- 
session by  means  of  a  mortgage,  he  cannot  be  charged  as  gar- 

2  Willard  r.  Sheaf p,  4  Mass.  235;  Lane  v.  Novell,  15  Me.  86. 

3  Andrews  v.  Ludlow,  5  Pick.  28;  Nickersou  v.  Chasn,  122  Mass.  296.  See  al- 
so Grant  v.  Sliaw,  IG  Mass.  34;  8  Am.  Dec.  142;  Willard  v.  Sheaf  e,  4  Mass.  235; 
Mahew  r.  Scott,  10  Pick.  54;  IJoardman  v.  Gushing,  12  N.  H.  112. 

4  Ward  V.  Lamson,  GPick.  358.  See  also  Childs  v.  Digby,  24  Pa.  St.  23;  Bank 
of  Northern  Liberties  v.  Jones,  42  Pa.  St.  536;  Stone  v.  Hodges  14  Pick.  84; 
Lane  v.  Nowell,  15  Me.  8G;  Mouse  i;.  Holt,  22  Me.  180;  McDonald  v.  Gillett,  69 
Me.  271. 


1G5  CHARACTER   OF  POSSESSION.  §   412 

nisliee,  where  he  has  not  the  actual  possession  or  control.^  So 
a  consignee  cannot  be  charged  as  garnishee  In  respect  to  goods 
consigned  until  they  have  arrived. '^ 

§  412.  Actual  Control  held  More  Important  than  Legal  Con- 
trol.— "  Control  "  guides  one  to  a  more  definite  comj)rchension 
of  tlie  Intention  of  the  statute  than  the  word  "  possession."  It 
is  understood  to  mean  that  the  party  having  control  has  some 
power  to  direct  tlie  disposition  of  the  property  in  question,  and 
we  are  not  required  to  look  critically  into  the  question  of  pos- 
session. Where  money  was  placed  in  the  hands  of  one  of  two 
sureties,  to  be  held  by  him  as  security  for  both,  It  was  held 
that  the  bailee  was  the  only  one  necessary  to  be  summoned  as 
garnishee,  in  an  action  against  the  principal.^  It  was  he  who 
had  control  of  the  deposit.  Under  a  statute  which  autliorized 
the  garnishment  of  anyone  who  had  goods,  etc.,  of  the  princi- 
pal defendant,  "  Intrusted  or  deposited  in  his  iiands  or  posses- 
sion," the  Court  did  not  regard  possession,  though  actual,  as  the 
governing  feature  of  the  case.  The  garnishee  had  taken  a 
cow  on  trial,  with  the  Intention  of  purchasing  in  case  of  ap- 
proval ;  and  before  the  time  of  trial  had  expired,  notified  tiie 
defendant  that  he  should  not  purchase,  and  had  delivered  her 
to  the  owner,  in  so  far  as  an  expression  of  willingness  that  she 
might  be  removed  would  amount  to  delivery.  But  the  owner 
hft  her  in  his  possession,  where  she  was  when  the  paicy  In 
possession  was  summoned  as  garnishee.  There  was  no  question 
but  that  the  property  had  been  deposited  In  the  possession  of 
the  garnishee,  and  that  it  remained  in  his  possession  up  to  the 
time  of  garnishment;  and  yet  the  Court  seems  to  have  been 
so  clearly  of  the  opinion  that  it  was  not  the  Intention  of  the 
law  to  subject  one  so  situated  to  the  process  of  garnishment, 
that  It  was  held,  on  what  seems  a  weak  argument,  tliat  he  was 
not  chargable.  The  main  reason,  given  with  some  hesitancy 
and  doubt,  was,  that  he  liad  no  claim  to  hold  the    property 

5  Curtis  V.  Raymond,  29  Iowa,  52;  Central  Bank  r.  Prentis,  18  Pick.  396;  Cal- 
leuder  v.  Furbish,  4G  Me.  226;  Field  v.  Crawford,  6  Gray,  IIG;  Steadman  v. 
Vickery,  42  Me.  132. 

6  Grant  v.  Shaw,  16  Mass.  341.    See  Briggs  v.  Block,  18  Mo.  281. 

1  Chesley  v.  Coombs,  58  N.  H.  142.  See  also  Arnold  v.  ElweU,  13  Me.  264; 
Brunswick  Bank  v.  Sewall,  34  Me.  202. 


§   412  CHARACTER   OF   POSSESSION.  1G6 

against  tlie  owner.^  A  better  reason  could  have  been  found 
in  the  fact  that  he  had  surrendered  it  to  the  owner,  and  no 
longer  exercised  any  control  over  it  that  would  have  been  in 
the  least  inconsistent  with  the  right  of  the  officer  to  have 
seized  the  jiroperty  by  direct  levy.  He  was  in  a  manner  the 
involuntary  custodian,  from  the  time  he  surrendered  the  cow  to 
her  owner.  In  Louisiana,  it  is  held  immaterial  whether  the 
control  of  the  garnishee  is  legal  or  not,  provided,  as  a  matter 
of  fact,  the  garnishee  actually  controls  the  funds  of  the  debtor. 
If  in  the  exercise  of  such  control,  however  obtained,  he  dis- 
poses of  the  funds  after  garnishment,  he  will  be  held  liable.^ 
The  control  of  the  garnishee  must  be  such  that  he  can  deliver 
the  property  on  execution,  otherwise  he  cannot  be  charged. 
Hence,  where  the  property  was  in  the  joint  possession  of  sev- 
eral, and  neither  had  exclusive  possession,  it  was  held  that  all 
must  be  joined  before  interrogatories  could  be  filed  against 
either.^  It  is  sufficient  to  constitute  possession  or  control  of 
property,  within  the  meaning  of  the  statute,  that  it  be  in  the 
garnishee's  enclosure,  or  building,  of  which  he  has  charge. 
Where  the  owners  of  a  private  log-boom,  who  had  exclusive 
I^ossession  and  control  of  the  same,  received  logs  which  be- 
longed to  defendant,  and  took  them  in  such  boom  for  an  agreed 
compensation,  it  was  properly  held  that  they  had  such  posses- 
sion of  the  loirs  as  would  sufiice  to  render  them  charitable  as 
garnishees.^  This  will  serve  as  an  illustration  of  what  would 
bo  regarded  as  possession,  when  the  article  in  question  was  in 
the  garnishee's  warehouse,  stable,  pasture,  or  other  place  over 
which  he  exorcised  control,  which  are  obviously  too  numerous 
and  various  in  kind  to  admit  of  examples  of  each.^ 

It  is  a  general  exception  to   the  doctrine   that  the  creditor 

2  Staniels  v.  Raymond,  4  Cusli.  314.    See  Huntley  v.  Stone,  4  Wis   111. 

3  Buddig  (!.  Simpson,  33  La.  An.  375. 

*  Frizzell  t\  Willard,  37  Ark.  473.  The  control  of  the  garnisliee  must  go 
farther  tlian  the  mere  temporary  handling  of  tbe  chattels  of  defendant,  or 
suffering  them  to  remain  on  the  premises  of  the  party  charged  with  their  pos- 
session.— Staniels  v.  Raymond,  4  Cush.  314;  McElroy  v.  Raymond.  4  t  usli. 
317;  Stickney  v.  Batchelder,  18  N.  H.  40;  Pattingillr.  Androscoggin  Railroad, 
61  Me.  372. 

5  Farmers'  and  Mechanics'  Bank  v.  Wells,  23  Minn.  475. 

6 Glenn  v.  B.  &  S.  Glass  Co.,  7  Md.  287;  Lane  v.  Nowell,  15  Me.  8G;  Bean  v. 
Bean,  33  N.  H.  279. 


107  CHARACTER   OF   POSSESSION.  §    413 

stands  in  no  better  position  toward  the- garnishee  than  did  tlie 
defendant  })rior  to  garnishment,  that  a  fraudulent  transferee 
may  be  proceeded  against  as  garnisliee,  when  the  fraudulent 
vendor  can  assert  no  rights  whatever  to  the  property  fraudu- 
lently sold.  But  a  fraudulent  sale  of  property  will  not  be  suffic- 
ient to  charge  the  garnishee,  when  such  property  was  not  actual- 
ly delivered  to  him,  or  if  so  delivered,  was  returned  prior  to  ser- 
vice of  process/  When  a  corporation  is  summoned  as  garnishee, 
the  service  is  necessarily  made  on  an  officer,^  and  it  has  been 
assigned  as  a  reason  for  refusing  to  hold  the  garnishee  liable, 
that  the  agent  upon  whom  service  was  made  had  no  custody 
or  control  of  the  property  of  the  debtor.^ 

When  a  public  carrier  is  summoned  as  garnishee  in  respect 
to  goods  held  for  transportation,  in  an  action  against  the  con- 
signor, the  presumption  is  that  they  are  the  property  of  the 
consignee,  and  for  this  reason  it  has  been  held  the  carrier  could 
not  be  held  as  garnishee. ^"^  But  elsewhere  it  is  held  that  this 
fact  cannot  always  be  safely  assumed  by  tlie  carrier.  Hence, 
where  a  railroad  company  was  garnished,  in  a  suit  against  a 
consignee  of  goods  in  its  possession,  and  answered  through 
its  proper  agent  that  he  (the  agent)  knew  nothing  of  con- 
signee's business,  and  did  not  know  to  whom  the  goods  be- 
longed, it  was  decided  that  the  garnishee  could  not  be 
charged.  ^^ 

§  413.  Possession  by  a  Non-Resident  Garnisliee. — In  order 
to  hold  a  non-resident  garnishee,  who  is  served  with  process 
during  a  temporary  sojourn  in  the  State,  something  more 
seems  to  be  required  than  control  of  the  property.  In  the  ob- 
servance of  wise  conservatism  on  the  pai't  of  the  Courts,  they 
have  been  disinclined  to  go  in  advance  of  the  law-makers,  and 
by  implication  extend  the  operation  of  the  attaclmient  law  to 
cases  not  expressly  provided  for.  They  find  no  provision  for 
attaching  property  which   is  not  within  the  State  where  the 

"  GiUtorson  v.  Morse,  58  N.  H.  529. 

"  Baltiiaore  etc.  R.  Co.  ?'.  Gallaliue,  12  Gratt.  G55. 

0  Western  R.  R.  v.  Thornton.  GO  Ga.  300. 

10  Bingliara  v.  Lamping,  2(3  Pa.  St.  o40.    See  111.  Cent.  E.  Co.  v.  Cobb,  48  111. 
402. 

11  Walker  v.  Detroit  etc.  R.  Co.,  49  Mich.  44G. 


§   414  CHAEACTER   OF   POSSESSION.  1G8 

action  is  brought.  And  tliough  no  specific  lien  is  obtained  by 
service  of  process  of  garnishment,  they  hold  that  the  garnishee 
can  neither  be  summoned  from  without  the  State,  nor  charged 
in  respect  to  property  which  is  so  beyond  the  jurisdiction  of 
the  Court. ^  This  rule  necessiirily  confines  the  garnir-lunent  of 
i:on-residents  to  cases  where  the  garnishee  is  not  only  within 
reach  of  personal  service,  having  actual  control  of  defendant's 
property,  but  he  must  have  such  property  in  actual  jjot^session 
within  the  State  where  he  is  served  and  required  to  answer.'-^ 
In  Vermont,  under  a  statute  expressly  exempting  non-residents 
from  garnishment,  it  was  held  that  a  co-partnership  having  a 
place  of  business  in  the  State  wdiere  several  of  the  partners 
resided  could  be  so  served,  for  the  reason  that  their  place  of 
business  would  be  regarded  as  the  jjlace  of  residence  of  the 
firm,  and  the  situs  of  personalty  would  follow  their  co-partner- 
ship residence,  so  ascertained.^  By  invoking  this  doctrine  in 
Vermont,  where  the  garnishee  is  a  resident  of  the  State,  and 
ignoring  it  in  New  Hampshire,  where  the  garnishee  is  a  resi. 
dent  of  another  State,  substantially  the  same  practical  result 
is  reached  in  each  State — the  garnishee  is  held.*  In  the  New 
Hampshire  case,  the  garnishee  is  held  because  he  is  personally, 
though  temporarily,  within  the  State,  and  has  the  property 
with  him.  In  the  Vermont  case  the  property  is  constructively 
within  the  State,  because  there  is  where  the  garnishee  resides. 
Had  the  same  rule  been  applied  in  both  States,  the  decision 
must  have  been  different  in  one  of  them. 

§  414.  Garnisliee's  Possession,  whether  with  Claim  of  Own- 
ership or  not. — Of  course,  the  garnishee's  mere  claim  of  owner- 
ship to  property  in  his  possession,  and  in  reference  to  which  he 
is  garnished,  will  not  affect  his  liability,  provided  such  claim 

1  Tingley  v.  Buteraau,  10  Mass.  .^iS;  Nye  v.  Lipscomb,  21  Pick.  2r>3:  Hart  v. 
Anthony,  15  Pick.  445;  Lovejoy  v.  Albree,  33  Me.  414;  44  Am.  Dec.  G30;  Law- 
rence r.  Smith,  45  K.  H.  533;  Baxter  v.  Vincent,  G  Yt.  (514;  Creen  v.  Farmers' 
etc.  Bank,  25  Conn.  452 ;  Willet  v.  Equitable  Ins.  Co.,  10  Abb.  Pr.  193.  See  also 
Ikinge  V.  Green.  52  Vt.  204;  Ray  v.  Underwood,  3  Pick.  302;  Cronin  v.  Foster, 
13  R.  I.  196;  Smith  v.  Eaton,  30  Me.  307;  Jones  v.  "Winchester,  G  X.  U.  497; 
Sawyer  v.  Tliorapson,  24  N.  H.  610;  Bradford  v.  Mills,  5  R.  I.  393. 

^  Yonn<?  V.  Ross,  31  N.  H.  201. 

3  Peck  r.  Barnum,  24  Yt.  75. 

*  Peck  V.  Barnum,  24  Yt.  75;  Young  v.  Ross,  31  N.  H,  201. 


169  CHARACTER   OF   POSSESSION.  §   414 

is  unsupported.  And  where  lie  h.as  an  interest  in  the  property, 
tliis  may  only  be  such  as  will  serve  to  qualify  or  limit  his  lia- 
bility in  amount.  But  the  liability  of  the  garnishee  cannot  be 
made  to  depend  on  any  such  claim.  In  one  case,  the  opinion 
was  expressed  that  "  it  never  could  have  been  the  intention  of 
the  legislature,  that  the  mere  possession  of  property,  by  a  par- 
ty having  no  claim  to  hold  it  against  the  owner,  should  render 
him  liable  therefor  as  trustee  (garnishee),  and  thereby  to  be 
subjected  to  trouble  and  expense  in  answering  to  a  claim  in 
which  he  has  no  interest."  ^  The  circumstances  of  the  case 
were  such  that  it  might  be  well  doubted  whether  the  garnishee 
summoned  had  possession  of  the  property  at  all,  except  as  such 
possession  was  in  a  manner  imposed  upon  him  by  the  negligent 
failure  of  the  defendant  to  remove  it  after  the  garnishee  had 
surrendered  all  control.  It  might  well  have  been  decided  that 
the  garnishee  could  not  be  held  in  respect  to  the  involuntary 
possession  of  property,  but  to  make  his  interest  therein,  or  his 
right  to  hold  it  against  the  garnishee,  the  test  of  his  liability,  is 
clearly  out  of  all  harmony  with  the  current  of  authority,  that 
makes  the  defendant's  right  to  reclaim  possession  of  the  chat- 
tel the  test  of  liability  as  garnishee  of  the  party  holding  it.^ 
When  the  garnishee  sets  up  in  his  answer  title  in  himself,  the 
traverse  of  the  answer  is  not  held,  in  all  the  States,  sufficient 
to  put  the  genuineness  of  such  title  in  issue,  as  it  requires  a 
direct  proceeding  against  the  garnishee  for  that  purpose.^  But 
in  one  form  or  another,  the  party  summoned  may  claim  the 
property  held  by  him  as  his  own,  against  the  claim  of  the  de- 
fendant or  judgment  debtor,  which  is  maintained  for  the  ben- 
efit of  plaintiff  in  the  garnishment  proceedings.*  Whether  the 
claim  be  one  of  absolute  ownership,  or  merely  that  the  proper- 
ty is  held  as  a  pledge  for  debts  due  the  garnishee,  his  rights 
when  established  will  be  protected.^     He  may  retain  the  prop- 

iStanids  v.  Raymond,  4  Cusb.  314.    See  Buruliam  v.  Real,  14  Allen,  217. 

2Sko\vliegau  Rank  v.  Farrar,  4(J  Me.  293  ;  Estabrook  v.  Earle,  97  Mass.  302  ; 
Watkins  v.  Otis,  2  Pick.  88  ;  Edson  v.  Trask,  22  Vt.  18  ;  White  v.  Jenkins,  16 
Mass.  G2  ;  Wriglit  v.  Foord,  5  N.  H.  178  ;  Eicbelberger  v.  Murdock,  10  Md.  373  ; 
Thompson  v.  Stewart,  3  Conn.  171 ;  Emery  v.  Davis,  17  Me.  252  ;  Edson  v, 
Trask,  22  Vt.  18. 

3  Ivens  r.  Ivens,  30  La.  An.,  Pt.  I.  249  ;  Battles  v.  Simmons,  21  La.  An.  416. 

<  Albany  City  Ins.  Co.  v.  "Whitney,  70  Pa.  St.  248. 

SRadlam  v.  Tucker,  1  Pick.  389  ;  11  Am.  Dec.  202  ;  Ante,  §  262. 


§    415  CHARACTER   OF   POSSESSION.  170 

erty  so  pledged  as  security  for  lils  own  debt.^  And  where  the 
party  summoned  has  become  liable  as  security  for  a  debt  due 
by  the  owner  of  the  property  to  another,  and  holds  the  prop- 
erty as  indemnity  against  such  liability,  tliis  fact  appearing  in 
his  answer  should  be  sufficient  to  entitle  him  to  retain  posses- 
sion, as  against  the  creditors  of  the  owner  of  the  property. 
And  the  result  would  not  be  changed  by  the  fact  that  the  lia- 
bility assumed  by  the  garnishee  was  one  which  under  the  stat- 
ute of  frauds  he  might  avoid,  for  the  reason  that  it  was  a 
contract  to  answer  for  the  debt  or  default  of  another,  and  such 
contract  was  not  reduced  to  writing.  The  statute  of  frauds 
can  only  be  taken  advantage  of  by  the  party  sought  to  be  held 
on  the  promise.  If  he  sees  proper  to  waive  the  immunity 
thereby  afforded,  and  acknowledge  himself  bound  by  a  verbal 
promise,  no  one  else  can  occupy  a  position  that  will  entitle  him 
to  foi'ce  the  promissor  to  commit  a  moral  wrong. 

§  415.  Whether  the  Garnishee's  Possession  is  Rightful  or 
Otherwise. — A  distinction  is  made  against  garnishee's  liability, 
because  of  the  wrongful  manner  in  which  he  became  possessed 
of  the  property  in  question,  which  seems  more  nearly  allied  to 
the  subject  of  his  relations  to  the  property,  than  those  he  sus- 
tains towards  other  persons  claiming  an  interest  therein.  It  is 
difficult  to  see  how,  on  general  principles,  where  specific  prop- 
erty is  the  object  of  pursuit,  the  garnishee  may  avoid  his  lia- 
bility to  be  charged,  because  of  the  wrongful  manner  in  which 
he  gained  possession.  When  it  is  sought  to  hold  the  gar- 
nishee for  a  demand  allesred  to  be  due  defendant  as  damacres 
for  a  wrong,  it  is  sufficient  for  the  Court  to  exclude  it  from  the 
class  of  claims  embraced  in  the  general  language  of  the  statute 
as  debts,  and  refuse  to  extend  the  statutory  remedy  by  im^^li- 
cation.  But  when  property  has  been  taken  by  trespass,  or 
even  in  the  commission  of  a  felony,  its  character  is  not  changed, 
or  the  title  thereby  affected.  It  is  property  still.  Yet,  it  is 
held  that  where  one  person  has  taken  the  goods  of  another  by 
trespass,  the  former  cannot  be  summoned  as  garnishee  in  re- 
spect thereto,  in  an  action  against  the  latter.^     This  doctrine, 

6]SIitcliell  V.  Byrne,  G  Eicb.  (S.  C.)  171 ;  Picquet  v.  Swan,  4  Mason,  443  ;  Al- 
drich  v.  AVoodcock,  10  X.  H.  99. 
1  Despatch  Line  v.  Bellamy  Man.  Co.,  12  N.  H.  205;  37  Am.  Dec.  203.^ 


171  CHARACTER   OF   POSSESSION.  §  416 

however,  cannot  be  relied  on  as  establishing  a  general  rule. 
There  may  be  special  circumstances,  such  as  collusion  between 
the  trespasser  and  the  attaching  creditor,  that  would  incline 
the  Court  to  discourage,  as  far  as  possible,  the  use  of  its  pro- 
cess in  the  furtherance  of  any  unfair  advantage  that  might 
thereby  be  gained  over  the  debtor.  But  where  it  is  simj)ly  a 
question  of  rightfulness  or  wrongfulness  of  the  garnishee's  pos- 
session of  defendant's  property,  there  is  no  good  reason,  in  the 
absence  of  statutory  discrimination,  why  the  party  in  posses- 
sion should  not  be  charged  according  to  the  rights  of  the  own- 
er of  the  property.  Thus,  where  the  mortgagee  of  a  raih-oad 
took  possession  of  the  income  of  the  road,  against  the  will  of 
the  company,  and  such  income  belonged  to  the  company  as 
general  owner  of  the  road,  it  was  held  that  the  creditors  of 
the  road  could  reach  the  same  by  process  of  garnishment."  So, 
in  an  earlier  case  it  was  held,  where  defendant's  property  had 
been  placed  in  the  hands  of  an  agent  of  the  creditor,  without 
the  owner's  consent,  that  such  agent,  or  the  ci'cditor,  if  the 
property  had  come  to  the  hitter's  possession,  could  be  sum- 
moned as  garnishee,  as  it  was  not  necessary  in  order  to  sustain 
such  process  that  the  property  sought  to  be  reached  should 
have  come  to  the  possession  of  the  garnishee  by  contract.^ 

§  416.  The  Question  of  Defendant's  Interest  in,  or  Title  to, 
tlie  Property  Attached. — Another  question  that  is  involved  in 
that  of  the  character  of  garnishee's  ^^f^ssession,  as  well  as  the 
capacity  in  which  he  holds  tiie  property  of  defendant,  without 
being  identical  with  either,  is  that  which  is  considered  in  this 
section.  The  interest  of  defendant  in  property  of  which  an- 
other has  possession  or  control,  must,  in  general,  be  a  benefi- 
cial one,  and  one  which  he  may  claim  without  the  intervention 
of  one  who  holds  the  legal  title.  Where  the  capacity  in  which 
the  third  party  summoned  holds  the  property  is  that  of  trustee, 
and  the  defendant  is  the  cestui  que  trust,  the  diifculty  in  the 
way  is,  that  defendant  may  not  have  such  control  of  the  sub- 
ject of  the  trust  as  to  be  able  to  enforce  his  claim  to  the  prop- 

2De  Graff  v.  Thompson,  24  Minn.  452. 

8  Swctt  V.  Brown,  5  Pick.  178.    See  also  Brown  v.  Davis,  18  Vt.  211;  Loyless 
V.  Hodges,  44  Geo.  G47. 


§    41G  CHARACTER    OF   POSSESSION.  172 

erty  against  tlic  trustee.  If,  on  the  other  hand,  he  has  legal 
title,  witliout  any  beneficial  Interest,  the  proj)erty  cannot  be 
taken  and  applied  to  the  payment  of  his  debt.  Therefore,  if 
the  garnishee  hold  the  property  of  which  the  debtor  has  eitlicr 
lc!gal  title  without  beneficial  interest,  or  beneficial  Interest 
Avithout  legal  title,  It  cannot  be  reached  by  this  process,  un- 
less in  the  latter  case  he  has  the  right  of  pi'esent  possession 
and  enjoyment,  or  some  provision  be3'ond  the  ordinary 
statute  Is  made  for  that  [)urpose.^  This  Is  Illustrated  by 
one  of  the  cases  cited,  in  which  both  features  of  the  prop- 
osition ap[)ear.  The  party  summoned  as  garnlsh.ee  had  en- 
tered Into  an  undertaking  with  the  trustee,  to  pay  him  a 
yearly  sum  during  the  life  of  tlie  cestui  que  trusty  for  tlie  use 
of  the  latter,  his  wife  and  family  or  any  member  thereof,  as 
the  trustee  might  deem  best  In  the  exercise  of  his  discre- 
tion. When  the  undertaking  party  was  summoned  as  gar- 
nishee of  hoth  the  other  parties,  a  portion  of  the  annuity  was 
due  and  unpaid.  The  court  held  that  he  could  not  be  charged 
as  garnishee  of  the  cestui  cpce  trust,  for  the  reason  that 
he  was  under  no  legal  obligation  to  pay,  for  which  the 
latter  could  maintain  an  action  against  him.  On  the  other 
hand,  he  could  not  be  charged  as  the  garnishee  of  the  trustee^ 
who  had  no  beneficial  interest  In  the  fund,  and  hence  It  could 
not  be  ap[)lied  to  the  payment  of  his  debts. ^  Where  Insurance 
policies  were  assigned,  with  a  stipulation  that  a  portion  of  the 
proceeds  thereof  should  be  paid  by  the  assignee  to  one  who 
Avas  not  a  party  to  the  assignment,  It  was  held  that  the  as- 
signee could  not  be  charged  as  garnishee  of  such  third  party.'^ 
For  less  technical  reasons  it  was  held  that  a  father  could  not 
be  charged  in  a  garnishment  proceeding  by  the  creditors  of  his 
son,  because  of  a  house  built  by  tlie  son  on  the  father's  land, 
In  ex[)Octation  of  succeeding  to  the  land.  Here  the  fatlier  was 
under  no  legal  obligation  to  pay  the  son  or  the  son's  creditors 
for  the  house,  nor  would  he  have  been  had  the  house  been 
erected  pursuant  to  a  promise  on  the  father's  part  to  devise  the 

1  Brigden  r.  Gill,  16  ]SIass,  522;  Mcllvaiue  r.  Lancaster,  42  Mo.  96. 
"  Brigden  v.  Gill,  1(5  Mass.  522.    See  also  Hinkley  v.  Williams,  1  Cush. 
4'.'0. 
3  Field  >;.  Crawford,  6  Gray,  116. 


173  CHARACTER   OF   POSSESSION.  §  41G 

land  agreeably  to  his  son's  expectations.'*  The  technical  ground 
assigned  in  some  of  the  above  cases  is,  that  there  is  no  privity 
of  contract  and  interest  between  the  garnishee  and  the  defen- 
dant. This  is  well  and  elaborately  stated  by  Mr.  Drakc.^  But 
with  deference  it  may  be  said,  that  the  general  ground  of  the 
decisions  is,  that  the  garnishee  owes  nothing  to  the  defendant 
for  which  the  latter  can  maintain  an  action.  This  is  apparent 
when  a  case  is  presented  in  which  there  is  no  privity  of  con- 
tract, but  the  defendant  has  a  present  right  of  action  against 
the  garni.sjiee  for  the  property  held  by  the  trustee.  Here  tiiere 
is  no  doubt  that  the  holder  of  the  property  may  be  garnished 
in  an  action  against  the  owner  of  the  beneficial  interest,  who  al- 
so has  the  present  right  of  possession  and  enjoyment.*"  The 
case  of  Ilartman  v.  Olvera"  is  one  that  may  be  disposed  of 
upon  the  ground  that  the  privity  of  contract  between  the  gar- 
nishee and  the  defendant  was  wanting.  The  garnishee  had 
purchased  premises  upon  which  the  defendant  held  a  mortgage, 
and  it  was  sought  to  hold  him  by  service  of  summons  in  gar- 
nishment, as  the  debtor  of  such  defendant ;  but  the  Court 
held  that  the  purchase  subject  to  the  incumbrance  did  not 
make  him  the  debtor  of  the  mortgagee,  nor  did  he  become 
so  by  a  promise  made  to  his  vendor  that  he  would  pay  the 
mortgage  debt,  and  hence  he  could  not  be  charged  as  garni- 
shee.^ 

The  question  of  garnishee's  liability  turns  mainly  upon  the 
question  whether  the  property  in  his  possession  belongs  to  the 
defendant,  both  legally  and  beneficially,  but  particularly  the 

*  Wells  V.  Banister,  4  Mass.  514.  See  also  Iluot  v.  Ely,  17  Fla.  775;  Hartman 
V.  Olvera,  54  Cal  CI. 

SDrakeon  Att.,§490. 

6  Raynes  v.  Lowell  etc.  Society,  4  Cusb.  343. 

'  54  Cal.  Gl. 

8  TI.e  distribution  of  liabilities  does  not  proceed  by  the  same  rule  tbat  seems 
to  obtain  where  rights  are  conferred  upon  others.  Thus,  where  one  agreed  in 
writing  to  take  certain  shares  of  the  capital  stock  of  a  corporation,  stipulating 
tliat  tliey  were  to  be  paid  for  by  another  party,  one  miglit  suppose  at  a  glance 
tliat  it  was  difficult  to  fasten  the  liability  to  pay  upon  anyone  with  sufficie  t 
fen  ainty  to  support  garnishment  proceedings.  The  subscriber  does  not  prom- 
ise to  pay,  neither  does  the  party  whom  he  designates  as  the  one  to  make  pay- 
ment. But  the  subscriber  docs  promise  that  the  other  party  will  pay,  and  the 
promise  is  in  writing,  by  which  he  (the  subscriber)  becomes  personally  bound, 
and  may  bo  garnished  as  a  debtor  of  the  corporation.— Ottumwa  v.  Water 
Power  Co.,  59  Iowa,  283. 


§    41G  CHARACTER   OF  POSSESSION.  174 

latter.^  lie  may  not  Imve  the  legal  title,  and  yet  have  a  right 
■\vliich  he  can  enforce  by  action.  If  so,  the  party  in  possession 
may  be  summonetl  and  charged  as  garnishee.  But  if  he  have 
the  naked  legal  title  to  the  property,  with  no  interest  whatever 
therein  beyond  this ;  if  he  has  only  the  right  to  recover  pos- 
session of  the  same  for  the  use  and  benefit  of  some  one  else,  it 
needs  no  argument  or  illustration  to  show  that  such  property 
cannot  be  taken  and  applied  to  the  payment  of  his  debts. ^"^ 
Even  where  the  trustee,  in  placing  the  fund  or  property  in  the 
hands  of  the  depositary,  treats  it  ostensibly  as  his  own,  or  not 
distinctly  as  the  property  of  any  one  else  in  particular,  the  de- 
positary being  summoned  as  garnishee,  and  knowing  at  the 
time,  or  before  answer,  that  some  one  else  is  beneficially  inter- 
ested, this  fact  should  be  disclosed;  and  where  it  is  uncontro- 
verted,  or  sufl3ciently  proven  in  case  of  traverse,  should  dis- 
charge the  garnishee  from  liability. ^-^  Thus,  in  Hardy  v.  Hunt,^^ 
it  was  held  that  where  a  bailee  had  been  permitted  to  use  the 
money  of  the  bailor  as  his  own,  this  would  not  render  it  sub- 
ject to  garnishment  in  the  hands  of  a  stakeholder  as  the  mon- 
ey of  the  bailee,  when  it  could  be  distinguished,  and  the  at- 
taching creditor  had  not  been  misled  by  the  acts  or  declarations 
of  the  bailor.  So  in  Meadowcroft  v.  Agnew,'^  where  the  sher- 
iff deposited  various  sums  in  bank,  as  sheriff,  belonging  to 
various  execution  creditors,  and  the  bank  was  garnished  for 
an  individual  debt  of  the  depositor,  it  was  held  that  the  sheriff 
might,  as  trustee  of  the  various  persons  whose  funds  he  held, 
interplead,  showing  the  facts  of  the  case,  and  thereby  protect 
the  fund.  In  Pennsylvania,  however,  less  regard  seems  at  one 
time  to  have  been  had  for  the  sacredness  of  trusts,  unless  they 
were  openly  declared,  or  evidenced  by  some  written  memoran- 

9  Davis  V.  Marston,  5  Mass.  198  ;  Eastbrook  v.  Earle,  97  Mass.  .302  ;  F.  &  M. 
National  Bank  v.  King,  57  Pa.  St.  202  ;  Halpin  v.  Barringer,  26  La.  An.  170. 

10  Jones  V.  Etna  Ins.  Co.,  14  Conn.  501 ;  Cbapin  v.  Conn.  E.  Co.,  16  Gray,  69  ; 
Simpson  v.  Harry,  1  Dev.  &  Batt.  202  ;  Pickering  r.  \Vendell,  20  N.  H.  222  ; 
Huot  V.  Ely,  17  Fla,  775  ;  Hartman  v.  Olvera,  54  Cal.  61  ;  Jackson  v.  Bank  of 
U.  S.,  10  Pa.  St.  61, 

1'  Jones  V.  Bank  of  Northern  Liberties,  44  Pa.  St.  253  ;  Paxson  v.  Sanderson, 
2  Phila.  303  ;  Hardy  v.  Hunt,  11  Cal.  343  ;  Meadowcroft  v.  Agnew,  89  111.  469  ; 
Farmer's  etc.  Bank  v.  King,  57  Pa.  St.  202  ;  Bowler  v.  European  etc.  K.  Co.,  67 
Me.  395. 

12  11  Cal.  343.  . 

13  89111.469. 


175  CHARACTER   OF   POSSESSION.  §  416 

(luni.  In  Sllverwooil  v.  Bellas,^^  It  was  held  that  the  garnishee 
who  had  received  money  In  trust,  to  deliver  over  to  defendant, 
was  liable  because  he  did  deliver  it  over.  This  was  In  perfect 
accord  with  the  general  doctrine,  Inasmuch  as  the  beneficiary 
had  a  present  right  of  possession  and  enjoyment,  and  the  cred- 
itor stood  in  his  shoes.  But  in  following  this  case,  In  Jackson 
V.  Bank  of  United  States,^^  the  Court  seems  to  have  regarded 
the  deposit  of  money  by  a  trustee  In  a  bank  In  his  own  name 
as  a  fraud  upon  creditors,  Irrespective  of  the  extent  to  which 
they  were  actually  misled  by  the  act.  Under  a  statute  that 
rendered  the  garnishee  liable  for  money  or  propei'ty  coming  to 
his  possession  after  service,  it  was  held  that  the  bank  was  lia- 
ble, notwithstanding  the  fact  that  the  money  subsequently  de- 
posited belonged  to  other  persons  than  the  depositor,  and  was 
at  the  time  known  and  recognized  by  the  bank,  though  the 
deposit  and  payment  were  both  made  in  the  name  of  the  trus- 
tee. The  Court  so  held,  not  because  there  was  any  evidence 
in  the  case  of  actual  Injury  resulting  from  this  mode  of  doing 
business,  but  for  the  reason  that  the  act  was  reprehensible  on 
general  j^rinciples  of  public  policy,  and  if  countenanced  might 
encourage  similar  Irregular  methods  by  which  some  one  might 
be  misled  to  his  injury.  This  case  was  subsequently  criti- 
cised and  doubted  In  the  same  State,^^  but  was  In  a  still  later 
case  approved  as  good  law,^'^  where  It  was  also  held,  in  sub- 
stance, that  an  account  kept  with  a  bank  as  the  account  of  an 
agent  was  notice  to  the  bank  of  the  qualified  title  of  the  de- 
positor, and  the  fund  would  be  protected  against  the  agent's 
creditors  proceeding  by  garnishment.  It  would  be  recognized 
in  euch  case  as  the  money  of  his  principals ;  whereas  if  depos- 
ited and  drawn  out  in  his  own  name,  It  would  be  regarded  as 
converted  to  his  own  use,  and  creating  between  the  agent  and 
his  principals  the  relation  of  debtor  and  creditor. -^^  But  in  a 
comparatively  recent  case  by  the  same  Court,  it  was  decided 
that  where  the  agent  made  the  deposit  in  his  own  name,  with- 
es Watts,  420. 
15 10  Pa.  St.  61. 

16  Paxson  V.  Sanderson,  2  Phila.  303. 
1^  Bank  of  Northern  Liberties  v.  Jones,  42  Pa.  St.  536. 

18  See  also  McCormac  v.  Hancock,  2  Pa.  St.  310;  Jones  v.  Bank  of  Iforthem 
Libi-rties,  44  Pa.  St.  253. 


§    416  CHARACTER   OF   POSSESSION.  17G 

outdisclosing  liis  agency  in  the  matter,  and  after  garnisliment 
the  principal  gave  notice  of  his  ownership  of  the  money,  the 
garnishee  could  not  be  charged  in  the  interest  of  the  agent's 
creditors.'"  This  seems  the  better  doctrine  to  apply  to  all 
cases  of  trust  or  agency,  whether  discovered  before  or  after 
service,  where  it  does  not  appear  as  v^fact  in  the  case  that  the 
concealment  of  the  representative  capacity  of  the  party  having 
control  or  direction  of  the  property  has  been  for  purposes  of 
fraud,  or  that  the  creditors  of  the  defendant  have  been  misled 
to  their  injury  by  his  apparent  ownership. 

The  question  of  defendant's  ownership  is  also  affected  by 
the  modern  statutes  which  abrogate  the  common  law  rule  as 
to  the  husband's  title  to  the  personal  property  of  his  wife. 
Under  this  rule,  any  one  in  possession  of  the  wife's  personal 
property,  except  where  he  held  it  as  trustee,  to  her  separate 
use,^*^  might  be  held  as  garnishee  at  the  suit  of  the  husband's 
creditors. ^^  And  this  rule  has  been  so  applied  as  to  affect  leg- 
acies, and  distributive  shares  of  the  estates  of  decedents,  be- 
queathed or  descending  to  her."^  But  it  was  also  held  that 
the  wife's  interest  in  an  intestate  estate  could  not  be  reached 
for  the  debt  of  her  husband  by  garnishment  process,  until  the 
husband  had  done  some  act  to  reduce  it  to  possession,  or  had 
asserted  some  right  to  it.^^  And  where  it  was  held  that  a 
wife's  interest  in  the  estate  of  her  father  might  be  attached 
in  the  hands  of  the  executor,  by  writ  of  foreign  attachment 
against  the  non-resident  husband,  yet  it  was  held  that  in  case 
of  the  husband's  death  pending  the  proceedings  in  garnishment, 
the  lien  would  be  defeated  and  the  property  would  go  to  the 
wife.^*  So  it  was  held  that  money  in  the  hands  of  an  adminis- 
trator before  decree  of  distribution,  where  the  wife  was  an 
heir,  could  not  be  held  subject  to  foreign  attachment  until  the 
decree  was  I'endered.^^     And  where  a  legacy  was  left  a  married 

19  Farmers'  &c.  Bank  v.  King,  57  Pa.  St.  202. 

20  Parks  v.  Cushman,  9  Vt.  320. 

21  State  V.  Krebs,6  Har  &  J.  31. 

22  Vance  v.  McLouglilin,  8  Gratt.  289 ;  Holbrook  v.  "Waters,  19  Pick.  354 ; 
Wheeler  v.  Bowen,  20  Pick.  563  ;  Parks  v.  Cushman,  9  Vt.  320;  Peacock  v.  Pem- 
broke, 4  Md.  280. 

23  Wbeeler  v.  Moore,  13  N.  H.  478;  Probate  Court  v.  Niles,  32  Vt.  775. 

2'i  Vance  v.  McLougblin,  8  Gratt.  289;  Strong  v.  Smith,  1  Met.  (Mass.)  476. 
25  Short  V.  Moore,  10  Vt.446;  Probate  Court  v.  Niles,  32  Vt.  775. 


177  CHARACTER  OF  POSSESSION^  §   416 

woman,  whose  husband  had  deserted  her  and  was  living  in  an- 
other State,  the  Court  would  not  pi-esume  the  executor's  assent, 
80  as  to  vest  the  title  in  the  husband,  and  make  the  legacy  lia- 
ble for  his  debts,  from  the  fact  that  the  wife  had  possession 
and  received  profits  from  its  use.^^  But  where  a  promissory- 
note  was  made  payable  to  the  wife  for  a  debt  arising  wholly 
from  her  property,  the  maker  might  be  held  as  garnishee  of 
the  husband. ^'^ 

Whether  the  transfer  of  title  to  personalty  is  relied  upon  to 
defeat  the  garnishment  or  to  render  it  effectual,  it  will  depend 
upon  the  assent  of  the  transferee. ^^ 

26  Pressby  v.  McDonald,  1  Rich.  (S.  C.)  27;  Beckwith  v.  Baxter,  3  N.  H,  67. 

27  Shuttles  worth  v.  Noyes,  8  Mass.  229;  Hockady  v.  Sallee^  26  Mo.  219. 

28  Towne  v.  Griffith,  17  N.  H.  165. 

n.  Attach.— 12. 


CHAPTER  XXXn. 

THE   CAPACITY  IN   WHICH    GARNISHEE    HOLDS    DEFENDANT'S 

PROPERTY. 

§  417.  The  general  effect  upon  garnishee's  liability. 

§  418.  "Where  the  party  summoned  as  garnishee  cannot  be  sn6^. 

§  419.  Municipal  corporations  as  garnishees. 

§  420.  Officers  of  the  law — clerks  of  Courts. 

§  421.  Sheriffs,  and  other  executive  officers  of  Courts. 

§  422.  Treasurers,  and  other  public  officers  and  agenta. 

§  423.  Assignees,  etc.,  in  bankruptcy  and  insolvency. 

§  424.  Receivers  and  similar  officers. 

§  425.  Executors. 

§  426.  Administrators. 

§  427.  Guardians  and  curators. 

§  428.  Trustees  of  jirivate  trusts  and  powers. 

§  429.  Officers,  agents,  etc.,  of  corporations. 

§  430.  Agents  and  servants  of  other  defendants. 

§  431.  Attorneys  at  law. 

§  417.  The  General  Effect  upon  Gramisliee's  Liability. — The 
liability  to  garnishment  of  one  in  possession  of  propertywhich 
belongs  to  the  defendant  in  attachment,  or  the  judgment  cred- 
itor, as  the  case  may  be,  is  often  affected  by  the  capacity  in 
which  it  is  held.  And  when  this  circumstance  affects  the  lia- 
bility at  all,  it  generally  operates  to  extinguish  it.  This  exemp- 
tion may  arise  in  part  from  the  character  of  the  one  in  posses- 
sion, and  in  part  from  his  relations  to  other  parties  who  are 
interested  in  the  property.  It  has  nothing  whatever  to  do 
with  the  manner  in  which  the  property  is  held,  whether  actual- 
ly or  constructively,  except  as  the  representative  capacity  may 
■be  oonsidered  in  this  connection.  The  character  of  the  one  in 
■possession  will  defeat  the  garnishment  where  the  property  is 
held  by  one  not  capable  of  being  sued,  and  consequently 
against  whom  judgment  cannot  be  entered.  The  relations 
borne  by  the  party  in  possession  towards  others  in  respect  to 
the  property,  will  have  the  same  effect  where  such  relations 
interpose  a  legal  obstacle  to  direct  responsibility  to  the  defen- 


179  CAPACITY  IN   wniCH   GARNISHEE  HOLDS-  §   418 

dant  or  judgment  debtor  ;  or  in  other  words,  when  the  defen- 
dant, though  having  an  interest  in  the  property,  has  it  coupled 
with  conditions  that  prevent  his  assertion  of  his  rights  by  ac- 
tion against  the  holder  of  the  property.  There  is  also  another 
class  who  may  be  in  possession  of  property  which  in  itself  is 
attachable,  but  which  cannot  be  reached  by  garnishment  be- 
cause of  the  public  capacity  in  which  it  is  held.  Not  because 
the  holders  may  not  be  sued,  but  for  the  reason  that  the  Courts 
consider  it  contrary  to  public  policy  that  they  should  be  re- 
quired to  become  parties  to  actions  in  which  the  public  has 
no  interest.  Mention  has  been  made  of  most  of  these  in  a  for- 
mer chapter.^  Where,  however,  the  official  capacity  of  the 
party  summoned  is  the  only  objection  to  his  being  held  as  gar- 
nishee, it  will  be  found  that  the  exemption  from  liability  is  not 
in  every  instance  absolute  for  this  reason  alone.  In  some 
cases  it  only  has  the  effect  of  making  the  liability  subject  to 
certain  conditions. 

§  418.  Where  the  Party  Summoned  as  Garnishee  cannot  be 
Sued. — A  State  cannot  be  sued,  and  hence  cannot  be  effectual- 
ly served  with  garnishment  in  respect  to  j)roperty  of  a  debtor 
in  its  possession.  The  only  general  exception  to  the  doctrine 
that  a  State  or  the  general  government  of  the  Uuited  States 
cannot  be  sued,  is  where  it  consents  to  be  made  a  party  defen- 
dant.^ The  reason  of  this  exemption  is  the  recognized  sover- 
eignty of  the  State,  and  its  assumed  superiority  to  the  tribu- 
nal in  which  it  would  be  required  to  appear,  and  to  whose  pro- 
cess it  must  submit.  There  are  certain  constitutional  objec- 
tions to  the  suing  of  States,^  but  these  are  held  not  to  cover 
the  entire  range  of  litigation  in  which  a  State  may  become  in- 
volved, when  it  contracts    obligations    to   its    own  citizens.^ 

1  Ante,  Ch.  XXV. 

1  Briscoe  v.  Bank,  11  Peters,  259^^  Lador  v.  Baker,  39  N.  J.  L.  49  ;  Bank  of 
Tennessee  v.  Dibrell,  3  Sneed,  379  ;  Beers  v.  Arkansas,  20  How.  527  ;  Dewey  v. 
Garvey,  130  Mass.  86. 

2  Amendments  Const.  U.  S.,  Art.  XI. 

3  Tlie  amendment  to  the  Constitution  referred  to  above  was  adopted  in  con- 
sequence of  the  decision  of  tlie  Supreme  Court  of  the  United  States,  in  Chis- 
holm  V.  Georrjia  (2  Dall.  419),  to  the  effect  that  a  suit  brought  by  a  citizen  of 
South  Carolina  against  the  State  of  Georgia  was  properly  brought  in  that 
Court.    But  the  amendment  only  declares  that  the  judicial  power  of  the  Unit- 


§    418  CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  180 

Nevertheless,  the  sentiment  that  it  somehow  derogates  from 
the  dignity  of  a  sovereign  State,  to  be  summoned  before  a 
Court  without  its  consent  expressly  given,  prevails  to  a  suffi- 
cient extent  to  place  them  beyond  the  reach  of  compulsory 
process.  Even  constitutional  provisions  requiring  the  legisla- 
ture to  designate  Courts  in  which  the  State  may  be  sued  are  not 
self-enforcing,  as  the  legislature  must    enact   the  law  before 

ed  States  shall  not  extend'to  suits  against  one  of  the  United  States  "by  citi- 
zens of  another  State,  or  by  citizens  or  subjects  of  any  foreign  State."  It  sup- 
plies no  restriction  to  the  prosecution  in  tli6  Federal  Courts  of  suits  against 
the  States  by  their  own  citizens.  Jurisdiction  is  conferred  upon  the  Federal 
Courts  in  certain  classes  of  cases  enumerated  in  Sectrion  II,  Article  III,  of  the 
Constitution.  The  first  of  these  in  order  is  the  class  involving  federal  ques- 
tions, irrespective  of  parties.  It  is  also  provided  that  in  cases  where  States 
are  parties  the  Supreme  Court  shall  have  original  jurisdiction:  but  this  juris- 
diction is  not  necessarily  exclusive.  (Ames  v.  Kansas,  111  U.  S.  449.)  See  al- 
so Antoni  v.  Greenhow,  107  U.  S.  769. 

In  the  case  of  Harvey  v.  Commonwealth  of  Va.  (1  American  Law  Journal,  194), 
Hughes,  J.,  assumes  for  the  purposes  of  the  case  that  the  Circuit  Court  oi  the 
United  States  has  jurisdiction  of  suits  against  States  brought  by  their  o«n 
citizens  ;  and  in  a  note  to  the  case  (p.  197)  reviews  the  constitution,  statutes 
and  decisions  as  follows.  *  *  «  "  It  was  not  until  the  passage  of  the  Act  of 
March  3,  1875,  that  Congress  gave  to  tiie  Circuit  Courts  of  the  United  States 
jurisdiction,  as  authorized  by  Section  II,  Article  III,  of  all  cases  arising  under 
the  Constitution,  or  a  law  or  a  treaty  of  the  United  States.  In  this  Act,  such 
jurisdiction  was  given  without  any  exception  as  to  parties  to  suits  or  their 
character.  Tlie  Act  of  1789  had  given  appellate  jurisdiction  to  the  Supreme 
Court  in  all  cases  of  this  class,  without  respect  to  amount  (which  might  be 
ever  so  small)  or  to  parties.  The  jurisdiction  to  Circuit  Courts  by  the  Act  of 
1875  is  equally  without  exception  as  to  parties,  but  is  limited  to  suits  where 
the  matter  in  controversy  is  not  less  in  value  than  $500."  In  support  of  the 
proposition  that  the  Constitution  confers  jurisdiction  upon  the  Supreme  Court 
where  the  State  may  be  a  party  defendant,  the  case  of  Cohens  v.  Virginia  (6 
^Vheat.  375),  is  cited,  and  the  opinion  of  Chief  Justice  Marshall  freely  quoted. 
The  conclusion  of  the  Cliief  Justice,  as  given  in  his  own  words,  in  speaking  of 
the  judicial  power  of  the  United  States,  is  that  such  Court — "Is  authorized 
to  decide  all  cases  of  every  description  arising  under  the  Constitution,  or  a  law 
of  tlie  L'nited  States.  From  this  general  grant  of  jurisdiction,  no  exception  is 
made  of  those  cases  in  which  a  State  may  be  a  party.  *  *  *  Are  we  at  liberty 
to  insert  in  tliis  general  grant,  an  exception  of  those  cases  in  which  a  State 
may  be  a  party?  Will  the  spirit  of  tlie  Constitution  justify  this  attempt  to 
control  its  words  ?  We  think  it  will  not.  We  think  a  case  arising  under  the 
Constitution  or  laws  of  the  United  States,  is  cognizable  in  the  Coiirts  of  the 
Union,  whoever  may  be  the  parties." — 6  Wheat.  282.  In  support  of  the  prop- 
osition that  by  the  Act  of  March  3, 1875,  original  jurisdiction  is  conferred  upon 
Circuit  Courts  of  the  United  States  upon  the  same  terms,  except  as  to  amount, 
the  learned  annotator  quotes  from  the  opinion  of  Chief  Justice  Waite,  in 
Ames  v.  Kansas  (111  U.  S.  449),  who  follows  the  same  line  of  reasoning  as  his 
predecessor,  to  the  same  conclusion  ;  citing  by  the  way  the  opinion  of  Mr. 
Justice  Miller,  in  the  case  of  Wisconsin  v.  Duluth,  2  Dill.  406. 


181  CAPACITY    IN    WHICH    GARNISHEE   HOLDS.  §    418 

any  Court  can  be  invested  with  this  extraordinary  jurisdic- 
tion.^ 

As  a  consequence  of  the  exemption  of  the  State  from  being 
sued,  it  is  held  that  a  State  Treasurer  cannot  be  held  as  jiar- 
nishee,  on  account  of  money  in  his  hands  due  to  the  defendant 
in  an  action.^  For  like  reasons,  the  salary  of  no  officer  of  the 
State  can  be  attached  by  garnishment.^  This  seems  to  extend 
the  exemption  to  the  State  officers,  as  well  as  to  the  State 
itself ;  but  in  reality,  it  leaves  the  doctrine  of  State  exemption 
intact ;  for  if  the  officer  has  any  attachable  property  in  his 
hands,  which  he  holds  in  a  private  capacity,  he  may  be  re- 
quii'ed  to  answer,  notwithstanding  his  official  character,  and 
will  be  charged  precisely  as  any  garnishee.  When,  however, 
the  money  or  property  under  his  immediate  control  Is  held  in 
the  capacity  of  a  public  servant.  It  would  be  extremely  absurd 
to  attempt  to  charge  him  as  a  2:)rivate  individual  with  the  pos- 
session of  that  which  he  cannot  surrender,  except  as  he  is  le- 
gally authorized.  If  he  is  held  at  all,  it  must  be  as  a  repre- 
sentative of  the  State ;  and  to  subject  him  to  garnishment  as  a 
means  of  getting  that  which  Is  in  the  State's  custody,  is  to  all 
intents  and  purposes  to  prosecute  a  suit  against  the  State  itself.'^ 
This  procedure  cannot  be  rendered  effectual  to  remove  from 
the  custody  of  a  State  official,  bonds,  or  securities  of  any 
hind  deposited  with  him  in  accordance  with  law.^  Nor  can  It 
be  employed  to  interrupt  the  regular  disbursement  of  money 
appropriated  by  the  legislature  to  the  payment  of  the  debtor  • 
against  whom  the  suit  Is  instituted.^  The  exemption  of  the 
iState  from  process  of  garnishment  does  not  rest  entirely  upon 
the  general  exemption  from  suits  ;  for  it  has  been,  held  where 

^  And  where  the  statute  provides  for  such  suit,  it  is  held  that  such  statute 
may  be  repealed  without  impairing  any  constitutional  right. — Beers  v.  State 
of  Arkansas,  20  How.  527. 

6  Lodor  V.  Baker,  39  N.  J.  L.  49. 

6  Bank  of  Tennessee  v.  Dibrell,  3  Sneed,  379. 

■^  Tracy  v.  Hornbuckle,  8  Bush,  33G;  Rollo  v.  Andes  Ins.  Co.,  23  Gratt.  509  ; 
14  Am.  Hep.  147;  Pennebaker  v.  Tomlinson,  1  Tenn.  Ch'y,  111;  Ladd  v.  Gale, 
57  N.  H.  210.  Thus  a  State  Ijunatic  Hospital,  uuder  control  and  government 
of  the  commonwealth,  could  not  be  charged  as  garnishee  of  a  person  to  whom 
it  was  indebted. — Dewey  v.  Garvey,  130  Mass.  86. 

8  RoUo  V.  Andes  Ins.  Co.,  23  Gratt.  509;  14  Am.  Rep.  147. 

''' AVild  V.  Ferguson,  23  La.  An.  752;  Deviue  v.  Harvie,  7  Mon.  439;  18  Am. 
Dec.  194. 


§  419       CAPACITY  IN  wnicn  garnishee  holds.  182 

the  State  had  provided  for  the  prosecution  of  suits  against  it- 
self, that  it  could  not  be  held  as  garnishee  on  account  of  a 
salary  due  from  it  to  the  debtor.^''  So,  where  the  State  was 
owner  of  a  railroad  which  it  operated,  and  it  was  provided  by 
statute  that  suits  might  be  prosecuted  against  such  road  for 
damages,  it  was  nevertheless  held  that  the  salary  of  the  super- 
intendent could  not  be  reached  by  his  creditors  by  means  of 
garnishment.^^ 

Independent  of  the  general  doctrine  that  a  State  cannot  be 
sued  without  its  own  consent,  there  are  considerations  of  pub- 
lic policy  that  would  incline  the  Courts  to  discourage  the  em- 
ployment of  garnishment  proceedings  against  them.  It  in- 
volves more  than  a  sentimental  notion  of  sovereign  dignity,  for 
such  proceedings,  if  generally  tolerated,  would  inevitably  inter- 
rupt the  despatch  of  public  business,  and  be  a  means  of  meas- 
urably thwarting  the  purposes  of  government.  Upon  this 
ground  of  public  policy,  it  is  held  that  the  District  of  Columbia, 
a  local  government  that  has  no  sovei-eign  dignity  to  sacrifice, 
cannot  be  garnished.-'^  So  it  would  probably  be  held  in  any 
of  the  Territories  where  public  oflBcers  were  summoned  as  gar- 
nishees on  account  of  money  or  propei'ty  in  their  hands  belong- 
ing to  the  defendant  in  attachment.  Where  the  State's  attor- 
ney held  a  sum  of  money  recovered  on  bond  to  the  use  of  a 
private  citizen,  to  whom  it  Avas  by  act  of  the  legislature  di- 
rected to  be  paid,  it  was  held  that  such  attorney  could  not  be 
charged  as  garnishee  in  an  action  against  the  party  to  whom 
the  sum  was  due.^^  The  same  doctrine  that  exempts  States 
and  their  fiscal  officers  from  the  process  of  garnishment,  ap- 
plies with  equal  or  greater  force  to  oflficers  of  the  United 
States.i^ 

§  419.  Municipal  Corporations  as  G-arnishees,  —It  is  solely 
upon  grounds  of    public  policy,  and  for  less  cogent  reasons 

10  McMeekin  v.  State,  9  Ark.  553. 

"Dobbins  v.  O.  &  A.  E.  Co.,  37  Ga.  240.  See  also  Wilson  v.  Bank  of  La.  55 
Ga.  98. 

12  Fattier  etc.  Mf'g  Co.  v.  Taylor,  3  McArthur  4;  Deer  v.  Lubey,  1  McArthux 
187. 

13  Stillman  v.  Isham,  11  Conn.  124. 

"  Devine  v.  Harvie,  7  Mon.  439;  18  Am.  Dec,  194. 


183  CAPACITY   m   WHICH   GARNISHEE   HOLDS.  §   419 

than  can  be  urged  in  behalf  of  the  State  and  Territorial  gov- 
ernments, that  municipal  corporations  are  held  not  subject  to 
garnishment.  Their  dealings  are  more  nearly  on  the  same 
plane  as  those  of  individuals  and  jirivate  corporations.  Their 
governmental  machinery  is  more  readily  controlled,  and  tem- 
porary hindrances  and  obstructions  more  easily  removed. 
Nevertheless,  with  a  few  exceptions,  these  subordinate  branch- 
es of  government  have  been  held  free  from  this  annoyance. ^ 
It  was  accordingly  held  in  Iowa,  that  a  township  could  not  be 
garnished  ;^  and  in  New  Hampshire,  that  a  town  could  not  be 
garnished  for  a  bounty  due  a  volunteer  in  the  army.^  The 
same  doctrine  prevails  in  Pennsylvania,  in  respect  to  cities  and 
villages.^  And  it  is  held  in  Tennessee,  that  the  statute  express- 
ly giving  the  remedy  by  garnishment  against  "corporations," 
does  not  include  municipal  corporations.^  In  Rhode  Island, 
thei-e  is  a  statute  which  prescribes  that  all  corporations  may 
be  garnished,  and  this  is  held  to  include  municipal  corporations.^ 
Nevertheless,  the  question  is  stated  rather  doubtfully  in  a  later 
case,  where  it  was  held  where  the  town  had  been  divided  into 
school  districts,  that  neither  the  town  nor  the  town  treasurer 
was  liable  to  garnishment  for  a  teacher's  wages  ;  at  feast,  not 
until  an  order  had  been  given  by  the  school  committee  in  fa- 
vor of  the  teacher.'^     In  Michigan,  it  is  decided  that  a  school 

1  In  Missouri,  wliere  it  is  held  that  money  in  a  city  treasury  cannot  be 
reached  by  this  process,  the  same  result  may  be  accomplished  by  a  bill  in 
equity.— Pendleton  v.  Perkins,  49  Mo.  5Go. 

2  Jenks  V.  Osceola  Township,  45  Iowa,  554.  See  Caldwell  v.  Stewart,  30 
Iowa,  ST9. 

3  Brown  r.  Heath,  45  N.  H.  168  ;  Wendell  v.  Pierce,  13  N.  H.  502  ;  Morse  v- 
Towns,  45  N.  11.185;  Manchester  i'.  Burns,  45  N.H.  482  ;  Bradley  i-.Eichmond, 
6  Vt.  121.    See  Shepard  v.  Turner,  13  Allen,  92. 

4  Green  r.  Ptowley,  1  Pitts.  1  ;  Erie  v.  Knapp,  29  Pa.  St.  173.  See  also  Burn- 
ham  V.  City  of  Fond  Du  Lac,  15  Wis.  193 ;  Mayor  v.  Rowland,  2(j  Ala.  498 ; 
Clark  r.  Mobile  School  Commissioners,  36  Ala.  021;  Holt  v.  Experience,  26 
Ga.  113  ;  McLellun  v.  Young,  54  Ga.*399  ;  21  Am.  Rep.  276  ;  City  of  Chicago  v. 
Hasley,  25  111.  595  ;  Merwin  v.  City  of  Chicago,  45  111.  133  ;  Egerton  v.  The 
Third  JIunicipality,l  La.  An.  433  :  Major  v.  Root,  8  Md.  93  ;  Hadley  v.  Pea- 
body,  13  Gray,  200 ;  Moore  v.  Major,  8  Heisk.  850 ;  Parsons  v.  McGavock,  2 
Tenn.  Ch.  581 ;  Bradley  v.  Town  of  Richmond,  0  Vt.  121  ;  Buffham  w.  City  of 
Racine,  20^18.  449  ;  Boone  County  r.  Keck,  31  Ark.  387  ;  Hawthorn  v.  City  of 
St.  Louis,  11  Mo.  GO  ;  Fortune  v.  City  of  St.  Louis,  23  Mo.  2.39. 

5  City  of  Memphis  v.  Laski,  9  Heisk.  511. 

6  Wilson  V.  Lewis,  10  R.  I.  285. 

'  Spencer  v.  School  District,  11  R.  I.  537.    See  Norton  v.  Soule,  75  Me.  385. 


§    420        CAPACITY   IX   WHICH    GAKXISHEE   HOLDS.  184 

district  is  a  municipal  corporation,  and  cannot  be  garnished 
even  by  its  own  consent,  unless  the  debtor  also  consents.^ 
While  in  Colorado,  where  tlie  exemption  of  municipal  corpo- 
rations is  maintained,  it  is  held  that  the  immunity  may  be 
waived  by  appearance  and  submission  to  liability'.^  In  Ala- 
bama, the  Court  overrules  an  earlier  case,  where  the  question 
was  differently  decided, ^'^  and  holds  that  a  judgment  creditor  of 
a  nmnicipal  corporation  cannot,  by  process  of  garnishment, 
rcacli  and  subject  funds  accruing  to  it  by  taxation,  either  while 
in  course  of  collection  by  suit,  or  after  they  have  been  paid  into 
its  treasury. ^^  In  Bray  -y.  Wallingford,^"^  it  is  decided  under 
a  statute  to  the  effect  that  "debts  due  from  any  2:)erson  " 
might  be  attached,  that  the  word  "person"  would  include 
munici[)al  corporations.^^  In  Kentucky,  it  has  also  been  de- 
cided that  towns  and  cities  were  not  exempt  from  process  of 
garnishment.-'^  In  Ohio,  under  a  pi'ovisisn  of  the  Code  to  the 
effect  that  "money,  goods  or  effects"  which  the  judgment 
debtor  might  have  in  the  hands  of  "  any  person,  body  politic 
or  corporate  "  might  be  attaclied,  a  city  was  held  liable  to  gar- 
nishment.^^ 

§  420.  OMcers  of  the  Law — Clerks  of  Courts. — Money  or 
property  in  the  hands  of  an  officer  of  the  Court,  Avhich  lie 
holds  in  his  official  capacity,  is  generally  regarded  as  in  the 
possession  of  the  Court — in  the  custody  of  the  law — and  hence 
cannot  be  reached  by  gainiishment  of  the  officer.^     The  prin- 

8  School  District  v.  Gage,  39  Mich.  484  :  33  Am.  Rep.  421. 

9  Commissioners  Los  Animas  Co.  v.  Bond,  3  Colo.  411.  See  also  Clapp  v. 
"Walker,  25  Iowa,  315  ;  Wilson  v.  Bank  of  La.,  55  Ga.  98. 

w  Sraoot  V.  Hart,  33  Ala.  G9. 

11  Umlerhill  v.  Callioun,  63  Ala.  216.  See  also  Bartell  v.  Banman,  12  111. 
App.  450  ;  Weymouth  v.  Penobscot  Log  Driving  Co.,  75  Me.  41. 

i2  20(  onn.  416. 

13  But  see  Stillman  v.  Isham,  11  Conn.  124  ;  Ward  v.  County  of  Hartford,  12 
Conu.  404. 

1*  Rodman  ?;.  Musselman,  12  Bush.  354  ;  23  Am.  Rep.  724.  See  also  Whid- 
den  r.  Drake,  5  N.  H.  13 

15  City  of  Newark  v.  Funk,  15  Ohio  St.  462.  See  also  as  to  Counties,  Adams 
v.  Tyler,  121  Mass.  380. 

1  Alston  V.  Xewell,  8  Vt.  190;  Conant  v.  Bieknell,  1  D.  Chip.  (Yt.)  50;  Pren- 
tiss r.  Bliss,  4  Yt.  513;  24  Am.  Dec.  631;  Turner  v.  Fendall,  1  Cranch,  117; 
Bowden  v.  Schatzell,  Bailey's  Eq.  360 ;  Thompson  v.  Brown,  17  Pick.  462 ; 
Ilackley  v.  Swigert,  5  B.  Monroe,  86;  41  Am.  Dec.  256;  Ex  parte  Fearle  & 


185  CAPACITT  IN  wnicn  garnishee  holds.        §  420 

ciplc  upon  which  such  officers  are  held  exempt  would  apply 
to  clerks  of  Courts  as  well  as  others,  where  they  come  into 
possession  of  the  defendant's  effects,  and  hold  the  same  in 
their  official  capacity.^  This  is,  for  obvious  reasons,  the  gen- 
eral doctrine  in  regard  to  money  of  which  the  clerk  has  con- 
trol, by  reason  of  its  being  paid  into  Court  pursuant  to  an 
interlocutory  order,  to  abide  the  event  of  pending  litigation.^ 
It  is  almost  needless  to  say  that  garnishment  of  the  clerk  can- 
not be  resorted  to  for  the  purpose  of  attaching  the  interests  of  a 
judgment  creditor  in  a  judgment  of  record  in  his  Court.*  And 
yet  clerks  are  held  subject  to  garnishment  in  respect  to  money 
in  their  possession,  entrusted  to  them  in  their  official  capacity. 
Thus,  where  money  was  deposited  witii  a  clerk  in  lieu  of  an  ap- 
peal bond,  it  was  held  subject  to  garnishment  at  the  suit  of  a 
third  person,  for  the  reason  that  the  ultimate  title,  subject  to 
the  claim  of  respondent,  was  in  the  depositor. °  So  it  waslield 
that  an  accepted  draft  filed  in  a  case,  might  be  attaclied  by 
summoning  the  clerk  in  whose  custody  it  was,  as  garnishee.^ 
So,  also,  where  money  in  the  hands  of  the  clerk,  arising  from 
the  sale  of  property,  and  which  he  was  ordered  to  pay  over  to 
the  party  entitled  thereto,  was  held  subject  to  garnishment  at 
the  suit  of  a  creditor  of  the  party  to  whom  it  was  ordered  to 
be  paid.'^  These  cases  may  be  capable  of  reconciliation  with 
the  genei'al  proposition  that  money  or  property  in  the  custody 
of  the  officers  of  the  Court  is,  in  contemplation  of  law,  in  the 
Court's  keeping,  and  as  such  cannot  be  reached  by  garnish- 
ment ;  ^  or  the  authorities  may  be  regarded  as  conflicting  upon 
the  general  doctrine;  but  the  principle  involved  in  the  ques- 

Lewis,  13  Mo.  467;  53  Am.  Dec.  155;  Murrell  v.  Johnson,  3  Hill  (S.  C),  12; 
Daley  v.  Cunningham,  3  La.  An.  55;  Glenn  v.  Gill,  2  Md.  1;  McKenzie  v.  Noble, 
lOEich.  (S.  C.)M7. 

"  Ross  V.  Clark,  1  Dall.  354;  Ante,  §  264;  Drane  v.  McGavock,  7  Humph.  132; 
Hunt  V.  Stevens,  3  Iredell,  3G5;  Bowden  v.  Sehatzell,  1  Bailey's  Equity,  SCO; 
23  Am.  Dec.  170. 

3  Farmer's  Bank  v.  Beaston,  7  Gill  &  J.  421;  28  Am.  Dec.  226. 

4  Hanna  v.  Bry,  5  La.  An.  G51;  52  Am.  Dec.  606;  Daley  v.  Cunningham,  3  La. 
An.  .55. 

5  Dunlap  t'.  Patterson  Fire  Ins.  Co.,  74  N.  Y.  145;  12  Hun.  627;  30  Am.  Eep. 
283. 

6  Ealer  v.  McAllister,  14  La.  An.  821. 
■J  Guither  v.  Ballew,  4  Jones,  488. 

8  Murrell  v.  Johnson,  3  Hill  (S.  C),  12;  Bowden  v.  Sehatzell,  Bailey  Eq.  360, 


§    421         CAPACITY   IN   WHICH   GARNISHEE   HOLDS.  186 

tion  (so  far  as  the  law  of  attachment  may  be  said  to  be  gov- 
erned by  principle)  is  decidedly  in  favor  of  regarding  such 
deposits  as  beyond  the  reach  of  process,  unless  they  are  held 
under  the  above  exceptional  circumstances. 

It  is  the  doctrine  in  Maryland  that  money  held  by  a  trustee 
ajjpointed  by  decree  of  the  Court  of  Chancery,  and  belonging 
to  a  non-resident,  may  be  attached  by  his  creditors,  where  the 
final  audit  has  been  ratified  by  the  Court,  and  the  amount  be- 
longing to  the  debtor  ascertained,  and  an  order  passed  direct- 
ing the  trustee  to  pay  it  over.^ 

§  421.  Sheriffs  and  other  Executive  Officers  of  Courts. — 
The  doctrine  of  exemption  from  garnishment  in  respect  to 
money  or  property  in  legal  custody,  is  also  extended  to  sher- 
iffs and  similar  officers  ;  not,  however,  because  of  any  sup- 
posed sacredness  of  the  official  person,  but  solely  on  account 
of  the  capacity  in  which  the  thing  sought  to  be  attached  is 
held.  His  possession  may  be  said  to  be  the  possession  of  the 
Court ;  and  if  so,  to  charge  him  as  garnishee  would  be,  in  ef- 
fect, to  subject  the  Court  to  process.  Subject,  therefore,  to 
statutory  variation,  it  may  be  regarded  as  a  general  rule,  that 
such  officers  cannot  be  held  by  process  of  garnishment  on  ac- 
count of  their  possession,  in  the  capacity  of  representatives  of 
the  law,  of  the  effects  of  a  defendant  in  attachment  or  a  judg- 
ment debtor.  Thus,  it  is  held  that  money  levied  on  by  the  sher- 
iff hy  fieri  facias,  and  in  his  hands,  is  not  attachable.^  And 
that  money  received  by  the  sheriff  from  an  execution  sale  can- 
not be  attached  while  in  his  hands.^  But  where  there  is  a 
surplus  after  satisfying  the  judgment,  in  the  hands  of  the 
officer,  to  which  the  execution  defendant  will  be  entitled,  it 
is  held,  in  most  of  the  States  where  the  question  has  been 

9  Williams  v.  Jones,  38  Md.  555;  Cockey  v.  Leister,  12  Md.  12*. 

1  Blair  v.  Cantey,  2  Speer  (S.  C),  34. 

2  Dawson  v.  Holcomb,  1  O.  275;  13  Am.  Dec.  G18;  Dubois  v.  Dubois,  6  Cowen, 
494;  First  v.  Miller,  4  Bibb,  311;  Prentiss  v.  Bliss,  4  Vt.  513  ;  24  Am.  Dec.  G31; 
Reddick  v.  Smith,  4  111.  431;  Turner  v.  Fendall,  1  Cranch,  117;  Thompson  v. 
Brown,  17  Pick.  462;  Keating  v.  Spink,  3  O.  St.  124;  Jones  v.  Jones,  1  Bland's 
Ch.  443;  18  Am.  Dec.  327:  Blair  w.  Cantey,  2  Speer's  Law,  34;  42  Am.  Dec.  3G0; 
Marvin  v.  Hawley,  9  Mo.  378;  43  Am.  Dec.  547;  Quarles  v.  Porter,  12  Mo.  83; 
Ex  parte  Fearle  &  Lewis,  13  Mo.  467;  53  Am.  Dec.  155;  Haswell  v.  W^orsham, 
2  Humph.  524;  37  Am.  Dec.  572. 


187  CAPACITY    IN   •\VIIICII    GARNISHEE   HOLDS.  §   421 

raised,  that  this  should  not  be  regarded  as  in  the  custody  of  the 
law,  and  lience  can  be  reached  by  garnishment  by  other  cred- 
itors while  still  in  the  officer's  possession.^ 

A  later  decision  in  Vermont  than  the  one  cited,^  without  de- 
ciding the  question  under  discussion  here,  inferentially  favors 
the  doctrine  of  the  sheriff's  liability  to  garnishment.  An  ac- 
tion was  brought  by  an  execution  creditor  for  the  amount  due 
him  in  the  sheriff's  hands,  and  the  latter  interposed  as  a  de- 
fense the  pendency  of  garnishment  proceedings,  in  which  he 
had  been  summoned  by  a  creditor  of  the  plaintiff  in  the  action. 
It  was  held  that  the  pendency  of  such  proceedings  was  no  ob- 
stacle to  the  execution  creditor's  right  to  prosecute  his  action, 
and  that  he  might  recover  from  the  sheriff,  without  any  new 
demand,  the  amount  remaining  after  satisfying  the  demand  of 
the  plaintiff  in  the  garnishment  proceeding.^  In  New  Hamp- 
shire it  is  decided  that  the  sheriff  may  be  charged  as  garnishee 
in  respect  to  money  collected  by  him  on  execution,  even  where 
the  execution  creditor's  right  of  action  against  him  has  not 
been  perfected  by  a  demand  upon  the  officer,^  though  the  same 
Court  had  previously  held  that  the  sheriff  could  not  be  gar- 
nished prior  to  the  return  day  in  the  execution.'^  And  even  in 
some  of  the  earlier  cases,  in  which  it  is  most  strenuously  de- 
nied that  money  in  the  hands  of  the  officer,  collected  on  execu- 
tion, can  be  levied  on  in  his  hands,  tlie  decision  is  put  upon 
the  ground  that  the  creditor  cannot  claim  proprietorship  of  the 
specific  pieces  of  money,  and  that  the  law  has  not  provided  for 
reaching  the  execution  creditor's  claim  upon  the  sheriff  by  the 

3  Tucker  v.  Atkinson,  1  Humph.  300;  34  Am.  Dec.  650;  Watson  v.  Todd,  5 
Mass.  271;  King  v.  Moore,  6  Ala.  160;  41  Am.  Dec.  44;  Davidson  v.  Clayland, 
1  Har.  &  J.  546;  Lovejoy  v.  Lee,  35  Vt.  430;  Adams  v.  Lane,  38  Vt.  640;  Dick- 
inson r.  Palmer,  2  Pdch.  Eq.  407;  Jaquett  v.  Palmer,  2  Harr.  144;  Hearn  v. 
C^rutclier,  4  Yerg.  461;  Wheeler  u.  Smith,  11  Barb.  345;  Pierce  v.  Carleton,  12 
111.  358;  54  Am.  Dec  405;  Cole  v.  Wooster,  2  Conn.  203;  Dolby  v.  MuUins,  3 
Humph.  437;  39  Am.  Dec.  180;  Hurlburt  v.  Hicks,  17  Vt.  193;  44  Am.  Dec.  329; 
Hillr.  Beach,  12  N.J.  Eq.  31;  Lightner  v.  Steinagel,  33111.  510;  Millison  w. 
Fisk,  43  111.  112  ;  Langdon  v.  Lockett,  6  Ala.  727;  Everett  v.  Herrin,  48  Me.  537. 

*  Prentiss  v.  Bliss,  4  Vt.  513. 

5  Hicks  V.  Gleason,  20  Vt.  139.  See  also  Hurlburt  v.  Hicks,  17  Vt.  193;  44 
Am.  De  •.  329. 

6  Woodbridge  v.  Morse,  5  N.  H.  590.  See  also  New  Haven  v.  Fowler,  28  Conn. 
103. 

f  Adams  v.  Barrett,  2  N.  H.  374. 


§   421         CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  188 

process  employed.^  This  recognizes  the  truth  that  the  maxims 
of  the  common  law  cannot  be  invoked  in  aid  of  a  statutory  pro- 
ceedinf^,  to  enlarge  its  scope  beyond  what  a  strict  construction 
of  the  statute  itself  warrants. 

No  good  reason  is  apparent  why  money  or  property  in  the 
hands  of  a  sheriff,  in  his  official  capacity,  should  be  exempt 
from  execution  or  attachment  by  direct  levy,  and  at  the  same 
time  subject  to  garnishment.  This  distinction  may  be  made 
by  statute  ;  but  if  its  being  in  the  custody  of  the  law  protects 
it  in  the  one  case,  in  the  absence  of  a  statute,  it  must  be  held 
on  technical  rather  than  reasonable  grounds,  that  it  would  not 
be  equally  protected  in  the  other.  In  many  of  the  cases  here- 
inbefore cited,  where  the  property  was  held  exempt,  it  was 
from  seizure.^  But  in  some  of  the  States  a  different  rule  seems 
to  obtain  in  reference  to  garnishment,  particularly  where  it  is 
sought  to  obtain  control  of  money  in  the  hands  of  the  officer. 
The  reason  assigned  for  the  distinction  is,  that  the  money  can- 
not be  seized  in  specie,  because  the  execution  creditor  cannot 
so  claim  it  from  the  officer  ;^'^  while  as  a  right  or  ci'cdit  it  may 
be  reached  by  garnishment.^^  But  this  view  of  the  question  is 
expressly  repudiated  in  Massachusetts,  where  the  doctrine  is 
laid  down  that  *  *  *  "  There  is  nothing  in  the  reason  of  the 
thing,  resulting  from  the  relation  of  a  judgment  creditor  and 
an  officer  who  has  collected  money  for  him,  which  renders  the 
one  a  creditor  and  the  other  a  debtor.  There  is  nothing  said 
in  any  of  the  books  which  implies  that  that  relation  exists  be- 
tween them.  On  the  contrary,  money  so  collected  is  in  the 
custod}"^  of  the  law,  and  the  sheriff  is  the  trustee  for  its  safe- 
keeping." '^  The  conclusion  reached  by  this  Court  was  that 
money  collected  by  a  sheriff  on  execution  was  neither  goods, 
effects,  nor  credits  of  the  execution  creditor.  To  allow  it  to 
be  subjected  to  the  payment  of  a  demand  against  the  execution 
creditor  by  process  of  garnishment,  it  was  claimed  would  have 

8  Turner  v.  Fendall,  1  Cranch,  117. 

9  See  Prentiss  v.  Bliss,  4  Vt.  513;  24  Am.  Dec.  631;  Crane  v.  Freese,  1  Harri- 
rison  (N.  J.),  305. 

w  See  Turner  v.  Fendall,  1  Cranch.  117. 

11  Hurlburt  v.  Hicks,  17  Vt.  193;  44  Am.  Dec.  329;  Hicks  v.  Gleason,  20  Yt. 
139;  Lovejoy  v.  Lee,  35  Vt.  430;  Conant  v.  Bicknell,  1.  D.  Chip.  50;  Woodbridge 
f .  Morse,  5  N.  H.  519. 

^  Sedgwick,  J.,  in  Wilder  v.  Bailey,  3  Mass.  289. 


189  CAPACITY  IN  wnicn  CARisrisnEE  holds.       §  421 

the  effect  of  endangering  that  finality  of  determination  wliich 
is  the  aim  of  the  law.  The  same  sura  of  money  might  be  the 
subject  of  a  succession  of  similar  controversies,  as  successive 
creditors  came  forward  to  claim  it;  some  of  whom  might  make 
such  claims,  instigated  by  the  defendant  or  the  officer,  and  thus 
the  latter's  possession  of  the  money  be  indefinitely  prolonged 
at  the  trifling  exi)ense  of  maintaining  groundless  suits. '^  When 
the  question  was  again  presented  to  the  same  Court,  in  a  case 
where  the  process  was  served  on  the  officer  after  the  return 
day  of  the  execution,  this  seems  to  have  made  no  difference, 
as  it  was  still  held  that  the  avails  of  tlie  execution  in  the  ofii- 
cer's  hands  could  not  be  reached  by  garnishment  of  the  officer 
in  the  interest  of  a  creditor  of  the  execution  creditor. ^^  The 
same  principle  of  exemption  from  gai'nishment,  upon  the 
ground  that  money  held  by  the  sheriff  was  in  the  custody  of 
the  law,  has  been  recognized  in  very  many  if  not  most  of  the 
other  States,  and,  so  far  as  numbers  go,  it  may  be  regarded  as 
the  prevailing  doctrine.^^  Under  a  statute  of  the  State  of 
Massachusetts,  which  was  probably  not  in  force  when  this 
question  was  first  presented  in  that  State,  which  provided  that 
no  one  should  be  charged  as  garnishee,  on  account  of  money 
coming  to  his  hands  "  as  a  public  officer,  and  for  which  he  is 
accountable,  merely  as  such  officer,  to  the  principal  defendant," 
it  was  held  that  the  sheriff  could  not  be  so  charged,  because  of 
money  taken  by  him  from  the  person  of  a  party  arrested  on 
criminal  process.'^  In  Iowa,  in  the  absence  of  any  special  stat- 
utory provision,  it  was  held  where  a  prisoner  had  been  arrested 
for  larceny,  and  money  and  valuables  taken  from  his  person  by 
the  officer,  that  such  money  and  valuables  could  be  attached 
by  garnishment  process,  served  upon  the  officer  in  a  civil  action 

13  Wilder  v.  Bailey,  3  Mass.  289.  [No  text  writer  would  undertake  to  offeT 
sucl]  a  reason  in  support  of  sucb  a  rule.  Sach  pbilosopliy  is  only  acceptable 
coming  from  tlie  Bencli.] 

"  Pollard  V.  Eoss,  5  Mass.  319. 

i&  Farmers'  Bank  v.  Beaston,  7  Gill  &  J,  421;  28  Am.  Dec.  22G;  Burrell  r, 
Letson,  2  Speers,  378;  1  Strobbart,  239:  Zurcber  u.  Magee,  2  Ala.  253;  1  raiio  v, 
McGavock,  7  Humpb.  132;  Ligbtner  t;.  Steinagel,  33  111.  510;  Clymer  ».  Willis, 
3  Cal.  363;  Staples  v.  Staples,  i  Me.  532;  Pawley  v.  Gaines,  1  Tenn.  208;  Hill  v. 
La  Crosse  etc.  II.  Co.,  14  Wis.  291;  Millison  v.  Fisk,  43  111.  112. 

16  Robinson  v.  Howard,  7  Cusb.  257.  See  also  Morris  v.  Penniman,  14  Gray, 
220. 


§   422         CArACITT   IN   WHICH    GARNISHEE   HOLDS.  190 

against  the  prisoner.^"  But  in  a  later  case  it  was  held  by  the 
same  Court,  that  property  or  money  coming  into  possession  of 
the  sheriff  under  almost  precisely  the  same  circumstances  as 
those  detailed  above,  could  not  be  levied  on  by  the  officer  under 
a  writ  of  attachment  against  the  pi'isoner.^^  A  slight  varia- 
tion from  the  usual  wording  of  final  process  in  Connecticut, 
where,  instead  of  the  command  to  have  the  proceeds  of  the  ex- 
ecution in  Court,  etc.,  the  command  to  the  officer  was  to 
cause  it  to  be  '•  paid  and  satisfied  to  the  plaintiff,"  was  held 
sufficient  to  make  the  officer  the  agent  of  the  plaintiff,  and  the 
money  collected  on  execution  could  be  reached  by  garnishment 
of  such  agent ;  it  not  being  in  custodla  legisJ^  So,  upon  clear 
er  grounds  of  exception,  where  a  sheriff  went  out  of  office  with 
money  in  his  hands,  collected  during  his  official  term,  as  fees 
for  another  officer,  it  was  held  that  the  money  so  in  his  pos- 
session was  not  in  the  custody  of  the  law,  and  its  possession 
would  support  garnishment  at  the  suit  of  a  creditor  of  the  of- 
ficer for  whom  the  collections  were  made.^"  It  has  been  held 
upon  the  same  general  principle  that  applies  to  sheriffs,  that 
United  States  marshals  are  not  liable  to  garnishment,  because 
of  money  held  by  them  in  their  official  capacity .^^  But  a  con- 
stable has  been  held  garnishable  when  he  was  bound  to  pay 
over  the  money  to  the  execution  plaintiff,""  though  it  is  doubt- 
ful whether  this  exception  is  uniform. 

§  422.  Treasurers  and  other  Public  Officers  and  Agents. — 
Although  counties,  and  other  quasi  municipal  corporations 
that  have  direction  of  local  interests  in  the  State,  and  are  for 
most  purposes  regarded  as  integral  branches  of  the  State  gov- 
ernment, may  be  sued,  their  officers  who  have  the  collection 
and  disbursement  of  public  moneys  cannot,  in  general,  be  gar- 
nished in  respect  to  sums  in  their  hands  due  to  judgment  debt- 
ors or  defendants  in  attachment  suits.  This  exemption  is  due 
entirely  to  the  capacity  in  which  they  hold  such  money,  and 

17  Reifsnyder  v.  Lee,  44  Iowa,  101;  24  Am.  Eep.  733. 

18  Commercial  etc.  Bank  v.  McLeod,  Eep.  June  18th,  1884. 

19  New  Haven  Saw  Mill  Co.  v.  Fowler,  28  Conn.  103. 

20  Robertson  v.  Beall,  10  Md.  125. 

21  Burrell  v.  Letson,  1  Strobhart,  239. 

22  Burleson  v.  Milan,  06  Miss.  399. 


191  CAPACITY  IN  wnrcn  garnishee  holds.       §  422 

the  general  policy  whicli  forbids  private  interference  with  the 
regular  dlscliarge  of  their  public  functions.  A  sum  of  money 
in  the  hands  of  a  county  treasurer,  which  was  due  to  a  citizen 
for  jury  service,  could  not  be  reached  by  garnishment  of  the 
treasurer  in  a  suit  by  the  citizen's  creditors.^  The  same  gen- 
eral doctrine,  that  one  holding  money  or  property  under  au- 
thority derived  from  the  law,  cannot  be  garnished  so  as  to  af- 
fect Its  disbursement,  was  held  applicable  in  Illinois  to  the 
treasurer  of  a  school  district,  and  the  board  of  school  direc- 
tors when  garnished  In  respect  to  the  salary  of  a  teacher.^  In 
a  ease  arising  In  Kentucky,  the  ruling  was  based  upon  the 
ground  that  to  permit  the  garnishment  to  intercept  the  teach- 
ers salary  might  result  in  the  loss  of  the  teacher's  services,^ 
which  Is  a  more  reasonable  foundation  for  the  objection  to  the 
proceeding  In  a  case  of  this  kind,  than  where  the  services  In 
question  are  those  of  an  ordinary  municipal  officer.  In  the 
same  State  It  was  decided  in  an  earlier  case,  that  money  in  the 
hands  of  the  sheriff  which  he  was  ordered  to  pay  to  the  jailor, 
could  not  be  reached  by  garnishment  at  the  suit  of  the  latter's 
creditor.^  The  same  doctrine  is  held  in  Illinois  to  apply  to  the 
employees  of  cities,  when  the  money  due  them  for  salaries  or 
wages  is  In  the  hands  of  the  proper  disbursing  officer,  whose 
duty  it  is  to  pay  it.^  The  Supreme  Court  of  the  United  States 
take  the  same  view  of  the  question,  as  respects  the  wages  of 
seamen,  soldiers,  etc.,  as  well  as  of  salaries  of  government  offi- 
cers of  all  grades,  whether  civil  or  military.  The  question 
was  raised  In  that  Court  in  the  case  of  Buchanan  v.  Alexander,^ 
which  came  up  on  error  from  the  Superior  Court  of  the  Coun- 
ty of  Norfolk,  State  of  Virginia,  where  garnishment  of  a  sea- 

iChealy  v.  Brewer,  7  Mass.  259.  See  also  Bulkley  v.  Eckert,  3  Pa.  St.  368  ; 
45  Am.  Dec.  050  ;  Clark  v.  Clark,  62  Me.  255  ;  Triebel  v.  Colburn,  64  111.  376. 

-Millison  v.  Fisk,  43  111.  112  ;  Bivens  v.  Harper,  59  111.  21 ;  Clark  v.  Great 
Barrington,  11  Pick.  259. 

3  Allen  V.  Bussell,  78  Ky.  105.  See  also  Hightower  v.  Slaton,  54  Ga.  108  ;  21 
Am.  Bep.  273. 

•*  Webb  V.  McCauley,  4  Bush,  8. 

^Triebel  r.  Colburn,  G4  111.  376.  See  also  Memphis  v.  Laski,  9  Heisk.  511 ;  24 
Am.  Rep.  327  ;  Wallace  v.  Lawyer,  54  Ind.  501;  23  Am.  Rep.  661 ;  McLellan  v. 
Young,  54  Ga.  399  ;  21  Am.  Rep.  276.  Contra,  Rodman  u.  Mussellman,  12  Bush, 
354  ;  23  Am.  Rep.  724. 

64  How.  20. 


§  422      CAPACITY  IX  wnicn  gae^tishee  holds.  192 

mjin's  wages,  clue  from  a  purser  in  the  navy,  by  service  of  pro- 
cess on  tlie  purser,  had  been  sustained.  Mr.  Justice  McLean, 
in  delivering  the  opinion,  thus  disposes  of  the  question  under 
consideration.  *  *  *  "If  the  creditors  of  these  seamen  may, 
by  process  of  attachment,  divert  tlie  public  money  from  its  le- 
gitimate and  appropriate  object,  the  same  thing  may  be  done 
as  regards  the  pay  of  our  officers  and  men  of  the  army  and  of 
the  navy  ;  and  also  in  every  other  case  where  the  public  funds 
may  be  placed  In  the  hands  of  an  agent  for  disbursement.  To 
state  such  a  principle  is  to  refute  it.  No  government  can  sanc- 
tion it.  At  all  times  it  will  be  found  embarrassing,  and  under 
some  circumstances  it  might  be  fatal  to  the  public  service. 
The  funds  of  the  government  are  specifically  appropriated  to 
certain  national  objects,  and  if  such  appropriations  may  be  di- 
verted and  defeated  by  State  process,  or  otherwise,  the  func- 
tions of  the  government  may  be  suspended.  So  long  as  money 
remains  in  the  hands  of  a  disbursing  officer,  it  is  as  much  the 
money  of  the  United  States  as  if  it  had  not  been  drawn  from 
the  treasury.  Until  paid  over  by  the  agent  of  the  govern- 
ment to  the  person  entitled  to  it,  the  fund  cannot  in  any  legal 
sense  be  considered  a  part  of  his  effects.  The  purser  is  not 
the  debtor  of  the  seaman.  It  is  not  doubted  that  cases  may 
have  arisen  in  which  the  government,  as  a  matter  of  policy  or 
accommodation,  may  have  aided  a  creditor  of  one  who  re- 
ceived money  for  public  services  ;  but  this  cannot  have  been 
under  any  supj^osed  legal  liability,  as  no  such  liability  attach- 
es to  the  government,  or  its  disbursing  officers." ' 

''See  also  Averill  v.  Tucker,  2  Cranch  C.  C.  544;  Mechanics'  etc.  Bank  t'. 
Hodge,  3  Eob.  La.  373;  Clark  v.  Great  Barrington,  11  Pick.  259  ;  Stillman  v. 
Isham,  11  Conn.  124  ;  Eodman  v.  Musselman,  12  Bush.  354  ;  23  Am.  Eep.  724  ; 
Buckley  v.  Eckert,  3  Pa.  St.  3G8 ;  Wallace  v.  Lawyer,  54  Ind.  501 ;  23  Am. 
Rep.  661  ;  "Wild  v.  Ferguson,  23  La.  An.  752  ;  Tracy  v.  Hornbuckle,  8  Bush. 
336  ;  Eollo  v.  Andes  Ins.  Co.,  23  Gratt.  509  ;  14  Am.  R.  147  ;  Bank  of  Teunes- 
Bee  V.  Dibrell,  3  Sneed  (Tenn.),  378  ;  State  v.  Curran,  7  Eng.  322  ;  Danley  v.  State 
Bank,  15  Ark.  IG  ;  Spalding  v.  Imley,  1  Boot,  551 ;  Wicks  i-.  Branch  Bank, 
Mobile,  12  Ala.  594  ;  Dobbins  v.  Railroad  Co.,  37  Geo.  240  ;  Wilson  v.  Bank  of 
La.  55  Geo.  98  ;  Brashears  v.  Root,  8  Md.  95  ;  Ward  v.  County  of  Hartford,  12 
Conn.  404  ;  Cbealy  v.  Brewer,  7  Mass.  259  ;  McDoiigal  v.  Board  of  Supervisors  of 
Hennepin  Co.,  4  Minn.  184  ;  Gilmanr.  Contra  Costa  Co.,  8  Cal.  52  ;  Williams  y. 
Boardman,  9  Allen,  570  ;  Emeric  v.  Gilman,  10  Cal.  404  ;  Boone  Co.  v.  Keck,  31 
Ark.  387;  Randolph  v.  Ralls,  18  111.  29.  But  see  Adams  v.  Tyler,  121  Mass.  380, 
where  a  county  was  held  chargable  as  garnishee  for  compensation  due  messen- 
ger in  charge  of  its  court  house,  at  a  fixed  salary,  payable  from  the  county 
treasury. 


193  CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  §   422 

The  principle  upon  which  the  exemption  is  based  in  the 
opinion  quoted  is,  that  the  government  has  not  parted  with  its 
title  to  the  money,  so  long  as  it  is  in  the  liands  of  its  own  rep- 
resentative, whether  he  be  styled  an  officer  or  an  agent.  If 
this  doctrine  is  worthy  of  general  acceptance,  and  there  can 
be  little  doubt  of  it  on  general  principles,  tliere  can  be  no 
logical  difference  between  the  consequences  of  entrusting  the 
disbursement  of  public  money  to  an  officer  who  pays  it  out 
pursuant  to  his  general  duties,  and  authorizing  its  payment  by 
an  agent  appointed  specially  for  that  purpose.  In  either  case 
the  possession  of  the  agent  is  the  possession  of  the  principal, 
so  long  as  both  possession  and  agency  continue.^  But  where 
the  money  has  been  paid  to  an  agent  of  the  officer,  the  case  is 
different  in  principle,  and  the  money  is  held  subject  to  garnish- 
ment in  the  hands  of  such  agent. ^  So,  where  a  township  clerk 
deposited  public  funds  in  a  bank,  to  his  personal  credit,  this 
was  held  to  be  a  conversion  of  the  money  to  his  own  use,  audi 
the  bank  could  be  held  as  garnishee  in  an  action  against  the 
clerk  ;  and  if  such  funds  were  paid  over  by  the  bank  before 
the  attaching  creditor  had  notice  that  they  belonged  to  the 
jDublic,  it  was  held  the  clerk  could  not  recover  them  in  his  of- 
ficial capacity.^** 

This  principle  is  recognized  in  Stillman  y.  Isham,^^  where 
an  attorney,  was  in  possession  of  money  recovered  in  a  suit  by 
the  State,  and  which  was,  by  direction  of  the  legislature,  made 
l^ayable  directly  to  a  party  who  was  personally  interested  in 
the  action.  It  was  held  that  the  attorney,  who  was  certainly 
not  a  reo;ular  disbursing  officer,  could  not  be  2;arnished  at  the- 
suit  of  the  payee's  creditors.  In  New  Hampshire,  however, 
this  doctrine  seems  to  have  been  held  inapplicable  to  a  case 
where  an  agent  was  appointed  for  the  purpose  of  distributing 
certain  public  money  to  the  inhabitants  of  a  town,  per  caioita. 
It  was  accordingly  held  that  he  might  be  held  as  garnishee  in. 
respect  to  the  share  of  an  individual  inhabitant.-'^ 

8  See  Barnard  v.  Graves,  16  Pick.  41;  Neuer  v.  O'Fallon,  18  Mo,  277;  Casey- 
f.  Davis,  100  Mass.  124. 

9  Kennedy  v.  Aldridge,  5  B.  Mon.  141. 
i**  Long  V.  Emsley,  57  la.  11. 

"  11  Conn.  124. 

12  Wendell  v.  Pierce,  13  N.  H.  £02. 
n.  Attach.— 13. 


§  423       CArACiTY  IN  wniCH  garxishee  holds.  194 

In  some  of  the  States,  where  Justices  of  the  Peace  are  au- 
thorized to  receive  money  due  the  plaintiff  in  an  action,  or  to 
act  in  the  capacity  of  agents  to  collect,  using  the  process  they 
are  empowered  to  issue  for  that  purpose,  it  is  held  that  their 
official  capacity  does  not  exempt  them  from  liability  as  gar- 
nishees.-*"^  But  it  is  held  otherwise  in  Pennsylvania,  where 
money  in  the  hands  of  Justices  of  the  Peace  is  regarded  as 
coming  within  the  general  rule  of  exemption.^*  It  was  accord- 
ingly held  that  a  judgment  against  a  garnishee,  who  was  a 
Justice  of  the  Peace,  for  not  answering  the  interroijatories  as 
to  the  number,  amount,  and  time  of  entry  of  judgments  on 
his  docket,  in  favor  of  the  defendant,  and  the  names  of  the  de- 
fendants therein,  was  erroneous. ^° 

§  423.  Assignees,  etc.,  In  Bankruptcy  and  Insolvency. — 
The  office  of  the  assignee  and  the  capacity  in  which  he  holds 
property  coming  to  his  hands  by  virtue  of  the  assignment,  are 
somewhat  peculiar.  He  is  in  one  sense  an  officer  of  the 
Court.  But  unlike  other  officers,  he  does  not  hold  the  proper- 
ty coming  to  his  hands  as  the  Court's  representative,  nor  is 
property  coming  to  his  possession  protected  because  it  is  in 
custocUa  legis,  unless  he  is  to  be  considered  as  not  only  the 
officer  but  the  Court  that  has  the  custody.  Neither  is  it  pro- 
tected on  the  ground  that  it  is  public  property,  and  he  is  the 
authorized  distributor  or  disbursing  agent.  He  is  held  exempt 
from  garnishment  at  the  suit  of  creditors  of  the  bankrupt  or 
insolvent,  upon  more  obvious,  if  not  more  satisfactory  grounds, 
than  either  an  officer  of  the  Court,  or  a  public  disbursing  offi- 
cer, is  exempted  from  such  process  in  respect  to  money  or 
property  subject  to  their  official  control.  He  holds  the  prop- 
erty so  assigned  to  him  by  a  title  paramount  to  the  bankrupt 
or  insolvent.  It  is,  until  the  rights  of  creditors  are  established, 
and  their  distributive  shares  ascertained,  his  own  property,  by 
virtue  of  the  assignment.^  In  view  of  this  conclusive  reason 
for  denying  the  right  of  the  creditor  to  subject  the  assets  in  the 
hands  of  the  assignee  to  the  process  of  garnishment,  at  the  suit 

13  Clark  i;.  Boggs,  fi  Ala.  809  ;  41  Am.  Dec.  85. 
"  Corbyn  v.  Bollman,  4  Watts  &  S.  342. 
15  Corbyn  v.  Bollman,  4  Watts  &  S.  342. 
1  Oliver  v.  Smith,  5  Mass.  183. 


195  CAPACITY    IN   WHICH   GARNISHEE   HOLDS.  §   424 

of  the  creditors  of  the  bankrupt  or  insolvent,  it  seems  unnecess- 
ary to  refer  this  exemption  to  public  2)olicy.  The  garnishment, 
if  permitted,  would  defeat  the  purposes  and  objects  of  the  law  -^ 
but  it  is  precisely  against  this  contingency  that  the  statute  by 
which  the  assignment  is  authorized  provides,  when  it  legalizes 
the  transfer  of  the  property  to  him,  for  the  purposes  of  ulti- 
mate distribution. 

It  is  another  matter  when,  in  the  course  of  the  administra- 
tion of  his  duties,  the  assignee  has  in  his  hands  a  sum  due  one 
of  the  creditors,  and  a  creditor  of  such  creditor  seeks  to  charsre 
him  as  garnishee  in  respect  thereto.  In  such  case,  the  exemp- 
tion could  be  maintained,  if  at  all,  only  on  the  ground  of  the 
official  capacity  in  which  the  money  of  the  defendant  was  held. 
It  is  no  longer  the  property  of  the  assignee.  In  case  of  his  re- 
fusal to  pay  it  over  to  the  party  entitled  thereto,  the  latter 
could  maintain  an  action  for  it.  It  is  not  apparent  how,  in 
such  case,  the  assignee  would  occupy  ground  more  favorable 
to  his  exemption  than  would  a  sheriff  in  possession  of  a  surplus 
due  an  execution  defendant.^  At  one  time  it  was  held  in  Mas- 
sachusetts that  under  such  circumstances  the  assignee  could  be 
garnished,  and  charged  with  any  sums  due  a  creditor  of  the 
estate  in  his  hands.*  But  this  appears  to  have  been  prior  to 
the  statute  referred  to  in  another  place,^  or  without  regard  to 
its  provisions,  as  that  expressly  inhibited  garnishment  of  officers 
in  respect  to  money  in  their  hands,  held  and  to  be  paid  out  in 
their  official  capacity.  Subsequently,  however,  it  was  held  by 
the  same  Court  that  garnishment  would  not  lie  against  an  as- 
signee,  at  the  suit  of  a  creditor  of  a  distributee  to  whom  mon- 
ey was  payable  by  him  as  such  assignee.^ 

§  424.  Receivers  and  similar  Officers. — Receivers  are  offi- 
cers of  the  Court,  and  consequently,  money  in  their  hands  is  in 
custodia  legis  under  precisely  the  same  circumstances,  and  sub- 
ject to  the  same  conditions,  as  it  would  be  so  held  when  in  pos- 

2  Farmer's  Bank  v.  Beaston,  7  Gill  &  J.  421 ;  28  Am.  Dec.  226. 

*  Supra,  §  421. 

*  Decoster  v.  Livermore,  4  Mas3. 101 ;  Jones  v.  Gorbam,  2  Mass.  375. 
6  Supra,  §  421. 

«  Colby  V.  Coatea,  6  Cusb.  558.    See  also  Dewing  v.  Wentworth,  11  Cusb..  499. 
See  Infra,  §  424,  for  further  authorities. 


§    424  CAPACITY    IN    WHICH    GARNISHEE   HOLDS.  196 

session  of  tlie  clerk  of  a  Court. -^  When  he  takes  charge  of 
property  he  practically  occupies  much  the  same  position  in  re- 
spect thereto,  and  in  relation  to  other  parties,  as  an  assignee  in 
bankruptcy,  except  perhaps  that  the  property  is  not  held  un- 
der title,  by  virtue  of  a  legal  transfer,  in  the  case  of  a  receiver 
as  it  is  by  the  assignee.  Yet  his  duties  are  those  of  a  conser- 
vator, and  finally  of  a  distributor  or  disbursing  officer.  He  re- 
ceives the  property  of  the  insolvent,  or  liquidating  corporation, 
for  example,  and  finally  makes  distribution  of  the  avails  amongst 
those  found  to  be  entitled  thereto  by  the  power  authorized  to 
adjudicate  upon  the  claims  presented. 

Money  in  the  hands  of  a  receiver,  before  any  distribution  is 
ordered,  is  as  secure  from  attachment  by  garnishment  served 
upon  the  officer  as  it  would  be  in  the  hands  of  an  assignee.^ 
This  exemption  may  follow  the  effects  in  his  hands  even  after 
the  termination  of  the  suit,  when  the  money  is  payable  into 
Court,  for  the  reason  that  it  is  still  in  the  custody  of  the  law,^ 
and  applies  to  all  officers  charged  with  similar  duties,  by  what- 
soever style  they  are  known  and  designated.*  The  doctrine  of 
exemption  from  garnishment  has  also  been  recognized  as  ap- 
plicable to  property  which  was  not  yet  reduced  to  actual  pos- 
session.^ But  in  Maryland  it  is  held,  that  the  appointing  and 
bonding  a  receiver  does  not  prevent  the  goods  which  he  is  au- 
thorized to  receive  from  being  attached.^  And  in  this  State, 
although  it  is  uniformly  held  that  the  process  of  garnishment 
served  on  the  receiver  or  trustee  cannot  affect  the  fund  in  his 
hands,  or  render  the  officer  liable,  or  compel  any  modification 
of  the  final  account,  it  is  nevertheless  decided  that  the  attach- 
ment may  be  laid  in  the  hands  of  the  officer  before  final  ac- 
count, and  will  be  effective  upon  a  sum  ascertained  to  be  the 
distributive  share  of  the  defendant  in  attachment.''     It  is  else- 

1  Field  V.  Jones,  11  Ga.  413  ;  Bentley  v.  Slirieve,  4  Md.  Ch.  Dec.  412  ;  Hoge- 
don  V.  Bank  of  Wis.,  1  Pinney.  Gl ;  Xelson  v.  Conner,  6  Kob.  (La.)  339. 

-Taylor  v.  Gillian,  23  Tex.  508  ;  Farmer's  Bank  v.  Beaston,  7  Gill  &  J.  421 ; 
28  Am.  Dec.  226  ;  Glenn  v.  Gill,  2  Md.  1. 

3  Field  V.  Jones,  11  Ga.  413  ;  Nelson  v.  Connor,  3  Rob.  (La.)  339. 

4  Bentley  v.  Shrieve,  4  Md.  Ch.  Dec.  412  ;  Mackenzie  v.  Xoble,  13  Eich.  147j 
Cockey  v.  Leister,  12  Md.  124. 

^Hagedon  v.  Bank  of  Wisconsin,  1  Pinney,  61 ;  39  Am.  Dec.  275. 
6Farmer's  Bank  v.  Beaston,  7  Gill  &  J.  421 ;  28  Am.  Dec.  22(). 
'McPherson  v.  Snowden,  19  Md.  197  ;  Groome  v.  Lewis,  23  Md.  137. 


197  CAPACITY   IN   WHICn   GARNISHEE   HOLDS.  §    425 

where  held,  and  as  it  appears  with  considerable  unanimity, 
that  when  defendant  has  a  right  to  a  certain  distributive  share 
of  the  fund  in  the  hands  of  a  receiver,  master  in  chancery,  or 
trustee  of  Court,  the  officer  may  be  effectually  garnished  by  a 
creditor  of  tlie  party  so  entitled,  after  the  Court  has  ordered  it 
to  be  paid.^  In  Alabama  it  was  decided  that  a  register  of  a 
Court  of  Chancery  could  be  charged  as  garnishee,  on  account 
of  a  surplus  of  money  belonging  to  a  defendant  after  a  sale  of 
mortgaged  property  under  decree  of  Court,  and  the  satisfac- 
tion of  the  mortgage  debt,  although  the  process  was  served 
before  the  sale  was  confirmed,  and  the  register  had  been  or- 
dered by  the  decree  to  report  his  doings  at  the  next  term  of 
Court. ^  The  rulings  in  this  and  the  case  of  Van  Riswick  v. 
Lamon,^*'  are  somewhat  analogous  to  the  decisions  in  reference 
to  the  liability  of  sheriffs  to  garnishment  in  respect  to  the  sur- 
plus left  in  their  hands  after  satisfying  an  execution. ^^  The 
authorities  seem  to  concur  in  holding  receivers  and  similar  of- 
ficers liable  to  garnishment,  when  they  have  in  their  hands  a 
definite  sum  to  which  the  defendant  or  the  judgment  debtor  is 
clearly  entitled,  and  the  officer  has  nothing  more  to  do  with 
the  fund  than  to  pay  it  over.  Some  of  them  may  go  beyond, 
but  none,  so  far  as  they  have  been  examined,  fall  short  of  this 
conclusion. 

§  425.  Executors. — In  the  absence  of  a  statute  that  ex- 
pressly includes  legacies,  and  distributive  shares  of  the  estates 
of  decedents,  in  the  classes  of  attachable  effects  that  may  be 
reached  by  garnishment  of  the  personal  representatives,  both 
executors  and  administrators  are  held  exempt  from  such  pro- 
cess, at  least  until  the  right  of  the  legatee  or  distributee  is  ascer- 
tained beyond  question.^  So  long  as  the  right  of  defendant  in 
attachment  depends  upon  a  contingency,  neither  the  executor 
nor  the  administrator  can  be  charged  as  garnishee,  as  being  in 

8  Van  Eis-wick  v.  Lamon,  2  McArtbur,  172  ;  "Williams  v.  Jones,  38  Md.  555  ; 
Weaver  v.  Davis,  47  III.  235. 

9  Langdou  v.  Lockett,  G  xVla.  727;  41  Am.  Dec.  78. 
"  2  McArthur,  172. 

^  Supra,  % '^l. 

1  A  statute  authorizing  the  attachment  of  legacies  was  held  not  to  be  retro- 
active, ;in(l  hence  would  not  rentier  garnishees  liable  under  judgment  obtained 
befure  i)ass;igc  of  the  law.— Hartle  v.  Long,  5  Pa.  St.  491. 


§   425  CAPACITY  IN  WHICH   GARNISHEE   HOLDS.  198 

possession  of  goods,  chattels,  effects,  rights,  or  credits  of  such 
defendant.  Whether  there  will  be  anything  which  the  de- 
fendant can  claim  as  his  own,  will  depend  very  materially 
upon  whether  anything  will  remain  after  the  payment  of  debts. 
This  contingency  is  sufficient  to  defeat  the  right  of  the  attach- 
ins  creditor  to  call  the  executor  to  account.  The  reasons 
assigned  for  this  exemption  are,  that  an  executor  derives  his 
authority  from  the  law,  and  is  bound  to  execute  it  according 
to  the  rules  prescribed  by  law ;  that  the  executor  cannot  be 
regarded  as  the  debtor  of  the  legatee  ;  that  the  creditor  can- 
not, as  in  ordinary  cases,  place  himself  in  the  position  of  the 
defendant,  and  prosecute  the  garnishment  against  the  executor 
without  great  inconvenience  to  the  latter ;  that  it  would  not 
only  embarrass  and  delay  the  settlement  of  estates,  but  would 
often  draw  them  from  Courts  of  Probate,  where  they  ought 
to  be  settled,  into  Courts  exercising  common  law  jurisdiction, 
who  would  have  no  power  to  adjust  and  settle  the  accounts  of 
the  executor.  Altogether,  it  might  operate  to  prevent  the  ex- 
ecutor from  executing  his  office  as  the  law  directs,^  So  in 
Pennsylvania,  where  the  question  arose  under  a  statute  that 
gave  the  legatee  a  right  of  action  at  common  law  to  recover 
his  legacy,  but  with  no  special  provision  in  the  law  governing 
foreign  atttachment,  by  which  the  necessary  means  for  harmo- 
nizing it  with  the  law  of  descents  and  distributions,  it  was 
decided  that  garnishment  of  the  executor  would  not  lie  at  the 
suit  of  a  creditor  of  the  legatee,  for  the  reasons  assigned  in  the 
Connecticut  case  ;  ^  considerable  stress  being  laid  upon  the  em- 
barrassment and  inconvenience  of  the  process  to  the  executor 
in  case  he  should  be  drawn  into  such  conflicts,  and  compelled 
to  withhold  payment  without  suit,  all  of  which  would  multi- 
ply his  onerous  duties,  and  increase  the  burden  of  his  respon- 
sibilities for  the  benefit  of  third  persons.  The  situation  of  the 
executor  was  held  analogous  to  that  of  a  sheriff  or  prothono- 
tary  in  whose  hands  money  could  not  be  intercepted  by  the 
creditors  of  the  party  entitled  to  it ;  the  analogy  consisting  of 
the  public  official  capacity  in  which  the  money  was  entrusted 
to  them.     As  a  consequence  of  new  parties  being  allowed  to 

2  Wincbell  v.  Allen,  1  Conn.  385;  Hess  v.  Shorb,  7  Pa.  St.  231. 
8  Winchell  v.  Allen,  1  Conn.  385. 


199  CAPACITY   IN   WHICH   GARXISHEE   HOLDS.         §   425 

attach  It,  there  would  be  no  end  of  disputes  and  hiwsuits,  and 
the  business  could  not  be  certain  of  ever  being  brought  to  a 
close  within  a  reasonable  time.*  At  one  time  the  same  doc- 
trine was  maintained  in  Massachusetts,  whether  the  garnish- 
ment was  before  or  after  the  probate  of  the  will.  The  legacy 
in  the  hands  of  the  executor  was  not  re<rarded  as  comino" 
within  the  description  of  "goods,  effects,  or  credits,"  and  did 
not  constitute  the  executor  a  debtor  of  the  legatee  ;  besides 
which,  an  executor  was  held  to  be  an  officer  of  the  law,  and 
for  this  reason  exempt  from  garnishment  on  account  of  any 
property  or  money  coming  to  his  hands  in  his  official  ca^jacity, 
which  he  was  bound  to  distribute  or  pay  out  according  to  the 
law  from  which  his  authority  was  derived.^  Later,  however, 
it  was  held  differently,  but  this  was  under  a  statute  subjecting 
debts  and  legacies  in  the  hands  of  an  executor  or  administra- 
tor to  the  process  of  foreign  attachment.  Guided  by  this  stat- 
ute, it  was  held  that  a  legacy  was  not  a  contingent  liability, 
for  the  reason  that  it  could  be  ascertained  by  the  settlement  of 
the  estate  whether  the  assets,  over  and  above  the  liabilities, 
were  sufficient  for  its  payment.  And  consequently,  the  inter- 
est of  a  husband  in  a  legacy  accruing  to  his  wife  could  be  at- 
tached in  the  hands  of  the  executor,  by  process  of  garnishment 
at  the  suit  of  the  husband's  creditor,  and  this,  too,  before  an 
order  of  distribution.^  But  where  the  executor  held  personal 
estate,  the  increase  of  which  was  to  be  paid  to  a  party  as  long 
as  he  should  live, .after  which  the  estate  was  to  go  into  the 
possession  of  whoever  might  be  entitled  to  it  under  the  will,  it 
was  held  that  the  executor  could  not  be  charged  as  garnishee 
at  the  suit  of  a  creditor  of  one  who  might  ultimately  be  enti- 
tled to  the  whole  or  a  part  of  such  property."  In  this  case, 
the  liability  to  tlie  debtor  was  of  a  purely  contingent  character, 
though  it  might  have  been  regarded  as  reasonably  certain,  so 

4  She  well  v.  Kern,  2  Wliart.  332;  30  Am.  Dec.  2GG.  See  also  Barnett  v. 
Weaver,  2  Wbart,  418  ;  Young  v.  Young,  2  Hill  (S.  C),  425. 

6  Barnes  w.  Treat,  7  Mass.  271;  Caily  v.  Comey,  10  Met.  (Mass.)  459.  See 
also  Brooks  v.  Cook,  8  Mass.  24G;  Colby  v.  Coates,  6  Gush.  558;  Thayer  v.  Ty- 
ler, 5  Alien,  94  ;  Beckwith  v.  Baxter,  3  N.  H.  67;  Barnett «.  Weaver,  2  Whart. 
418. 

6  Holhrook  v.  Waters,  19  Pick.  354.  See  also  Wheeler  v.  Bowen,  20  Pick 
5G3;  Hoar  n.  Marshall,  2  Gray,  251. 

''  Carson  v.  Carson,  G  Allen,  397. 


§  42o       CArACiTY  IX  Aviricn  GARxisnEE  holds.  200 

far  as  tlie  executor  was  concerned,  that  he  would  be  required 
to  surrender  the  property  to  some  one.  In  some  of  the  States 
a  disthiction  is  made  between  domestic  and  foreijrn  attach- 
ments,  as  to  whether  the  executor  may  be  garnished  in  any 
case  respecting  money  or  ivoperty  lield  by  him  in  liis  official 
capacity,  holding  that,  in  the  latter  class  of  attachments,  the 
proceeding  will  not  lie  under  any  circumstances,  and  only  in 
the  former  after  the  will  has  been  admitted  to  probate.^ 

These  early  decisions,  however,  though  supported  by  sound 
reasoning,  in  view  of  the  state  of  the  law  at  the  time,  and  al- 
tliougli  they  may  still  be  relied  upon  where  the  statute  does 
not  ])rescribe  rules  inconsistent  with  their  conclusions,  must 
be  taken  as  subject  to  the  subsequent  changes  inti'oduced  by 
legislation. 

A  different  rule  from  that  of  Pennsylvania,  Massachusetts 
and  Connecticut,  as  given  above,  is  announced  in  Virginia, 
where  it  was  held  that  the  interest  of  a  testatrix  in  her  father's 
estate  could  be  attached  in  the  hands  of  the  executor,  at  the 
suit  of  the  creditors  of  her  non-resident  husband.^  In  Indi- 
ana, under'a  statute  that  includes  "  hereditaments  "  in  the  enu- 
meration of  attachable  effects  and  credits,  it  is  decided  that  in 
foreign  attachment  the  executor  may  be  garnished  in  respect 
to  an  unascertained  distributive  share  in  a  decedent's  estate.^** 
But  this  conflicts  with  the  current  of  authority. ^^  In  Cum- 
minrjn  vs.  Garmn^"^  although  the  ruling  Avas  made  under  a 
statute  expressly  providing  for  the  attachment  of  effects  in  the 
hands  of  an  executor  by  process  of  gai'nishment,  the  Court 
went  so  far  in  carrying  out  tlie  manifest  intention  of  the  legis- 
lature, as  to  hold  that  a  "  legacy  "  not  expressly  mentioned  in 
the  writ,  was  by  necessary  implication  included  in  the  terms 
''  goods,  effects,  or  credits,"  which  was  the  language  of  the 
Avrit,  as  unchanged  with  tlie  enactment  of  the  law  subjecting 
executors  to  garnishment  in  respect  to  legacies.  The  new 
stutute  was  regarded  as  a  legislative  interpretation  of  the  pre- 
scribed writ,  as  including  legacies. 

8  Picquet  v.  Swan,  4  Mason,  443. 

s  Vance  r.  McLaughlin,  8  Gratt.  289.    See  Matthews  v.  Park,  1  Pittsb.  22. 

10  Stratton  v.  Ham,  8  Ind.  84. 

11  Beckwith  i'.  Baxter,  3  N.  H.  67;  and  cases  cited  supra. 
la  65  Me.  301. 


201  CArACiTT  iN^  wnicn  garnishee  holds.       §  426 

An  exception  to  the  general  statement  of  the  executor's  im- 
munity from  garnishment  is  also  made,  where  the  will  has  been 
proved,  the  case  closed,  and  the  executors  ordered  to  pay  a 
specific  sum,  or  deliver  particular  property,  to  the  defendant 
in  attachment.'^  This  distinction  is  perfectly  consistent  with 
the  decisions  where  the  garnishment  of  executors  is  inhibited 
on  the  ground  of  uncertainty,  or  contingency,  or  because  of 
the  embarrassment  and  expense  entailed  upon  the  executor  by 
this  practice  ;  but  it  is  utterly  inconsistent  with  the  rule  of  ex- 
emption, that  takes  the  broad  ground  that  the  executor  cannot 
be  garnished  because  of  the  official  capacity  in  which  he  holds 
the  property,  and  his  obligation  to  pay  it  out  or  distribute  it, 
as  prescribed  by  the  law  from  which  his  authority  is  derived.^* 

§  426.  Administrators, —  Occupy  substantially  the  same 
position  as  to  garnishment  as  executors,  except  where  a  dis- 
tinction is  made  by  statute.  Hence  the  doctrine  laid  down  in 
the  cases  cited  in  tliis  and  the  next  preceding  section  may,  for 
the  most  part,  be  applied  interchangably. 

In  the  absence  of  a  statute  expressly  authorizing  the  pro- 
cedure, in  such  case.s  it  is  quite  generally  held,  that  an  admin- 
istrator cannot  be  charged  in  garnishment  in  res]iect  to  money 
or  property  in  his  hands,  in  which  the  debtor  will  be  interested 
as  distributee.^  This  exemption,  as  we  have  seen  in  reference 
to  executors,  has  been  placed  upon  the  ground  of  the  official 
capacity  of  the  party  summoned.^  For  the  reason  that  the 
administrator  is  an  officer  whose  autliority  is  derived  from  the 
law,  he  is  held  exempt  from  process  of  garnishment  in  actions 

13  Fitcl.elt  V.  Dolbee,  3  Har.  269. 

1^  In  Alabama,  it  is  held  that  garnishment  on  a  judgment  may  be  had  against 
an  executor,  tliougli  the  judgment  is  against  himself  personally. — Dudley  v. 
Falkner  41)  Ala.  14S,  152.  But  it  is  also  there  held  that  the  executor  must  be 
summoned  as  garnishee  in  his  official  capacity'. — Tillinghast  v.  Johnson,  5  Ala 
514. 

1  Elliot  V.  Xewby,  2  Hawks  (N.  C),  21  ;  Short  r.  IMoore,  10  Vt.44f)  ;  Deblieux 
V  Hotard,  ".1  La.  An.  194  ;  Crownover  v.  Bamburg,  2  111.  App.  lf)2  ;  Marvel  v. 
Houston,  2  Har.  34U  ;  Parker  v.  Donnelly,  4  West  Va.  648  ;  Mack  c.  King,  15 
Ala.  6(1  ;  Bank  of  Chester  v.  Ralston,  7  Pa.  St.  822  ;  Hartle  ;;.  Long,  5  Pa.  St. 
491  ;  McCreary  v.  Topper,  10  Pa.  St.  419  ;  Hess  v.  Shorb,  7  Pa.  St.2:il  ;  Geev. 
"Warwick,  12  Haywood  (X.  C.)  354  ;  Bickle  v.  Chrisman,  76  Va.  678  ;  Marvel  v. 
Houston,  -J  Har.  (DeL)  349  ;  "Welch  i'.  Gurley,  2  Haywood,  334. 

2  Supra,  §  425. 


§  426  CAPACITY   IN   WHICH   GARNISHEE  HOLDS.  202 

brought  by  the  creditors  of  the  distributee.^  All  this,  how- 
ever, has  been  changed  by  statute  in  Massachusetts,  and  it 
has  been  since  held  that  the  interest  of  an  heir  may  be  at- 
tached by  process  of  garnishment  even  before  an  order  of  dis- 
tribution is  made ;  and  this  applies  to  the  interest  of  the  wife 
in  the  estate,  when  the  debt  upon  which  the  action  is  brought 
is  against  the  husband.*  But  though  the  process  may  be 
served  with  effect  before  the  order  of  distribution  is  made,  it 
is  held  that  it  may  not  be  done  until  the  administrator's  bond 
has  been  approved,  and  letters  of  administration  have  been  is- 
sued to  him  by  the  probate  judge. ^  In  Rhode  Island,  a  simi- 
lar doctrine  to  that  which  prevailed  in  Massachusetts  prior,  to 
the  statutory  change  above  referred  to  was  declared,  where  a 
debt  due  from  the  estate  of  deceased  was  sought  to  be  attached 
in  the  hands  of  the  administrator.  The  ground  upon  which 
it  was  held  that  the  proceeding  would  not  lie  was,  that  the  ad- 
ministrator does  not  come  in  either  as  attorney,  agent,  factor, 
trustee  or  debtor.^  And  in  Massachusetts,  there  seems  no  in- 
clination on  the  part  of  the  Supreme  Judicial  Court  to  enlarge 
the  operation  of  the  statute  beyond  its  clear  intent.  It  is  held 
in  a  recent  case  there,  that  the  administrator,  when  summoned, 
could  not  be  charged  on  account  of  a  small  fractional  interest 
in  the  vessel  which  was  never  in  his  actual  possession,  nor  un- 
der his  control  as  administrator,  and  which  had  not  in  course 
of  administration  been  sold  or  reduced  to  money.  And  also, 
in  the  same  case,  that  the  administrator  with  the  will  annexed 
might  retain  a  pecuniary  legacy  to  the  defendant  in  attach- 
ment, in  part  payment  of  a  debt  due  from  such  legatee  to  the 
testator,  and  could  not  be  charged  as  garnishee  in  respect 
thereto^. 

In  Maine  the  question  has  taken  somewhat  the  same  course 
as  in  Massachusetts.  The  doctrine  of  exemption  from  liability 
as  garnishee,  was  applied  to  administrators  on  general  princi- 
ples.^    This  doctrine  was  also  adopted  in  Arkansas,  and  applied 

8  Brooks  V.  Cook,  8  Mass.  246. 
*  Wheeler  v.  Bowen,  20  Pick.  563. 
6  Davis  V.  Davis,  2  Gush.  111. 

6  Conway  v.  Armington,  11  R.  I.  116.    See  also  Fitcliett  t".  Dolbee,  3  Har- 
rington (Del.),  267. 
■^  Nickerson  v.  Chase,  122  Mass.  296. 
8  "Waite  V,  Osborne,  11  Me.  185.    An  administrator  cannot  be  required  to 


203  CAPACITY   IN   WHICH   GARNISHEE   HOLDS.         §   426 

where  the  demand  had  been  allowed  against  the  estate,  and  It 
was  ordered  pald.^  In  Maine,  however,  as  we  have  noticed 
elsewhere  herein,^''  a  statute  has  intervened  between  the  earlier 
and  later  decisions,  by  which  it  is  provided  that  "  any  debt  or 
legacy  due  from  an  executor  or  administrator,  and  any  goods, 
effects,  and  credits  In  his  hands,  as  such,  may  be  attached  by 
trustee  process."  Since  this  statute  was  enacted,  the  cases 
arising  in  that  State  have  been  decided  with  reference  to  its 
provisions,  and  hence  the  doctrine  of  exemption  from  liability 
as  garnishee,  by  reason  of  his  office,  no  longer  applies  to  admin- 
istrators.'^ So  in  Mississippi  the  question  is  controlled  by  stat- 
ute, and  administrators  are  held  liable  to  the  process,  even 
v/^here  the  estate  is  insolvent.^^  In  Alabama,  the  Massachusetts 
rule  of  exemption  was  applied  where  it  was  sought  to  charge 
the  administrator  as  garnishee  of  one  of  the  distributees  of  an 
estate,'^  notwithstanding  earlier  decisions  in  the  same  State,  to 
the  effect  that  an  administrator  might  be  charged  in  respect  to 
a  debt  due  from  his  intestate  to  the  defendant,  when  he  was 
summoned  in  his  representative  capacity.^*  In  Vermont  the 
administrator's  liability  as  garnishee,  after  decree  of  distribu- 
tion, is  fixed  by  statute. ^^ 

The  most  general  rule  restricting  the  liability  of  administra- 
tors that  prevails  at  present,  independent  of  the  statute,  is  that 
they  cannot  be  charged  as  garnishees  In  respect  to  the  claims 
against  distributees  prior  to  settlement  of  the  estate,  so  that  it 
may  be  ascertained  whether  anything  will  be  due  such  distrib- 
utee, and  if  so,  the  amount,  and  an  order  of  distribution  has 
been  made,  by  which  the  distributee  will  have  a  certain  de- 
mand upon  the  administrator.^^     But  where  the  order  of  dis- 

answer  where  the  process  was  served  ou  intestate. — Tate  v.  Morehead,  65  N. 
C.  C81. 

9  Fowler  v.  McClelland,  5  Ark.  188;  Thorn  v.  "Woodruff,  5  Ark.  55. 

10  Supra,  §  425. 

11  Cummings  v.  Garvin,  65  Me.  301. 

12  Holinan  v.  Fisher,  49  ISIiss.  472. 

13  Mock  V.  King,  15  Ala.  66. 

"  Terry  v.  Lindsay,  3  Stew.  &  Port.  317;  Tillinghast  v.  Johnson,  5  Ala.  514. 

15  Parks  V.  Cushinan,  9  Vt.  320. 

16  Elliot  I'.  Newby,  2  Hawks  (N.  C),  21;  Short  v.  Moore,  10  Vt.  446;  Adams 
V.  Barrett,  2  N.  H.  374;  Debliux  v.  Hotard,  31  La.  An.  194;  Curling?;.  Hyde,  10 
Mo.  374;  Richards  v.  Griggs,  16  Mo.  416;  51  Am.  Dec.  240;  Crownover  v.  Ham- 
burg, 2  111.  App.  102;  Fitchett  v.  Dolbee,  3  Harrington  (Del.),  267. 


§    427  CAPACITY   IN   WHICn   GARNISHEE   HOLDS.  201 

tributlon  has  been  made,  and  the  distributee  has  thus  acquired 
a  right  to  demand  his  proportion,  the  administrator  will  gen- 
erally be  regarded  as  garnisiiable  at  the  suit  of  the  distribu- 
tee's creditor,^"  The  effect  to  which  the  merits  of  the  ques- 
tion are  stated  in  Bartell  vs.  Bauman,^^  is,  that  where  an  offi- 
cial holds  money  merely  as  the  agent  of  the  law,  he  is  not 
amenable  to  process  of  garnishment  by  reason  of  such  holding ; 
but  where  his  relation  Is  so  far  changed  that  he  Is  under  a  per- 
sonal obligation  to  the  defendant  in  attachment  or  judgment 
debtor,  which  is  held  to  result  from  the  order  of  distribution  ia 
the  case  of  an  administrator,  he  is  so  amenable. 

It  will  be  seen  by  a  comparison  of  the  authorities,  where  the 
question  of  liability  to  garnishment  has  reference  to  adminis- 
trators and  executors,  and  those  referring  to  other  fiscal  oflB- 
cers,  that  the  various  theories  of  liability  and  exemption  can 
never  be  reconciled  on  any  common  principle.  The  Illinois 
doctrine  seems  fair  and  reasonable  when  applied  to  administra- 
tors and  executors ;  but  it  Is  clear  that  it  cannot  be  applied  in 
every  case  where  the  question  concerns  the  duties  of  disbursing 
officers  of  government.  Perhaps  the  distinction  might  be 
safely  drawn  between  the  different  kinds  of  officers,  on  account 
of  the  different  nature  of  their  duties.-^^ 

§  427.  Guardians  and  Curators. — The  capacity  In  which 
guardians  and  curators  hold  property  committed  to  their 
charge  is  much  the  same  as  that  In  which  it  is  held  by  execu- 
tors and  administrators,  so  far  as  it  Is  affected  by  the  source 

1'  Bartell  v.  Bauman,  12  111.  App.  450;  Pierce  v.  Carleton,  12  111.  358;  54  Am. 
Dec.  405;  Liglitner  v.  Steinagel,  33  111.517;  "heaven-.  Davis,  47  111.  237;  Trie- 
bel  1'.  Colburn,  64  111.377;  and  cases  cited  sj/pra.  It  is  decided  in  Vermont 
that  he  may  be  held  under  such  circumstances,  when  summoned  in  his  jiersonal 
capacity. — Hoyt  v.  Christie,  51  Vt.  48. 

IS  12  111.  App.  450. 

19  Under  a  statute  providing  that  the  garnishee  could  not  be  held  to  answer 
any  suit  commenced  within  six  months  after  his  qualification,  it  was  held  that 
a  judgment  rendered  in  an  action  commenced  within  that  time  was  void,  and 
no  protection  to  the  administrator,  who  failed  to  plead  the  statute. — Gorman 
V.  Swaggerty,  4  Sneed,  560.  But  see,  under  similar  statute,  Moore  r.  Strainton, 
22  Ala.  831.  In  Xew  Hampshire  it  is  held  that  the  executor  or  administrator 
■will  be  chargable  as  garnishee  in  an  action  or  on  a  judgment  against  the  de- 
cedent's estate. — Quigg  v.  Kittridge.  18  X.  H.  137.  In  Mar  yland  it  is  held  that 
the  fact  that  garnishee  is  an  administrator  is  not  sufficient  ground  for  quash- 
ing the  attachment,— Hardesty  v.  Campbell,  29  Md.  533. 


205  CAPACITY    IN   WHICH    GARNISHEE   HOLDS.  §   427 

from  wlilcli  their  authority  is  dei'Ived,  and  the  manner  in  which 
such  authority  is  conferred  upon  them.  Where  the  guardian- 
ship is  of  a  minor,  and  the  attempt  is  to  charge  the  garnishee, 
the  question  would  naturally  arise  whether  the  contract  upon 
which  the  demand  is  founded  is  one  for  which  the  ward  could 
be  held  liable.  If  not,  it  would,  of  course,  be  impossible  to 
ciiarge  the  guardian  as  garnishee.  When  the  guardian  re- 
ceives the  property  of  the  ward,  charged  with  an  express  trust 
by  which  his  payment  is  restricted  to  certain  purposes,  or  he  is 
as  trustee  clothed  with  certain  discretionary  authority,  that  is 
not  subject  to  control  by  the  ward,  or  in  ids  interest,  other 
questions  arise  that  will  receive  attention  in  a  subsequent  sec- 
tion.* 

Where  the  guardian  had  charge  of  the  estate  of  a  spend- 
thrift, to  whom  he  was  liable  for  necessaries,  it  was  held  that 
garnishment  would  lie  at  the  suit  of  a  creditor  against  the 
guardian,  whereby  a  debtor  of  the  estate  was  charged.^  But 
as  a  general  proposition,  the  guardian  of  an  infant  cannot  be 
garnished  in  an  action  against  his  ward,  during  minority. 
This  must  be  true  for  obvious  reasons.  The  judgment  in  the 
principal  action  would  be  against  the  guardian  in  his  official 
capacity,  and  not  against  the  ward  alone,  with  his  guardian  as 
a  third  party.^  And  generally,  the  guardian  cannot  be  gar- 
nished in  a  suit  against  a  creditor  of  his  ward.  Where  a  fund 
was  In  the  hands  of  a  guardian  of  a  married  woman,  it  was  held 
that  it  was  not  subject  to  attachment  by  process  of  garnishment 
at  the  suit  of  the  husband's  creditors.*  In  no  case  would  the 
guardian  be  held  liable  to  the  process,  whether  as  guardian  of 
an  Infant,  or  as  curator,  or  committee  of  an  Insane  person,  until 
there  had  been  a  liability  fixed  by  accounting  tliiit  would  give 
the  ward  a  right  of  action  directly  against  his  guardian.^  This 
state  of  things  would  occur  where  the  relation  of  guardian  and 
ward  existed  as  to  past  transactions  alone,  and  for  the  pur- 
poses of  adjustment  and  settlement  of  accounts  between  them; 

1  Infra,  §  428. 

2  Hicks  V.  Chapman,  10  Allen,  463. 

8  Hanson  v.  Butler,  48  Me.  81  ;  Gasset  v.  Grant,  4  Met.  (Mass.)  48S  ;  Vierhel- 
ler  y.  Brutto,  6  111.  App.  95. 
^Godbold  V.  Bass,  12  Rich.  (S.  C.)  202. 
6 Davis  V.  Drew,  6  N.  H.  399  ;  25  Am,  Dec.  467. 


§    428         CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  206 

or  where  the  ward,  by  his  next  friend,  was  entitled  to  proceed 
affainst  his  o-uardian  for  misfeasance  or  malfeasance. 

It  is  held  in  Rhode  Island,  that  an  installment  of  an  annuity 
which  was  not  due,  and  which  was  in  equity  charged  upon  the 
real  estate  and  rents  and  profits  thereof  that  belonged  to  minor 
heirs,  could  not  be  reached  under  process  of  foreign  attach- 
ment in  the  hands  of  the  guardian,  for  the  debts  of  the  annui- 
tant.^ 

§  428.  Trustees  of  Private  Trusts  and  Powers. — When  a  party 
is  garnished  in  respect  to  money  or  property  in  his  hands  as  trus- 
tee of  the  attachment  defendant,  he  may  be  held  liable,  if  the 
cestui  que  trust  has  an  immediate  right  of  action  against  him.^ 
If  the  beneficiary  has  a  direct  demand  upon  the  trustee  for 
the  fund  or  property  in  the  latter's  hands,  the  creditors  of  the 
former  may  succeed  to  the  rights  of  their  debtor,  as  in  any 
other  proper  case  of  garnishment.  But  there  is  a  general  doc- 
trine that  applies  with  peculiar  force  to  cases  where  the  trus- 
tee is  summoned  as  garnishee,  that  the  creditor  can,  by  pro- 
cess of  garnishment,  acquire  no  rights  to  the  propei'ty  in  the 
hands  of  a  garnishee,  superior  to  that  possessed  by  his  debtor, 
except  in  cases  of  fraudulent  transfer.^  If  to  charge  the  trus- 
tee as  garnishee  of  the  cestui  que  trust  would  have  the  effect 
of  defeating  the  purposes  of  the  trust,  or  if  the  trustee  has  a 
discretionary  power  to  exercise  in  connection  with  the  trust, 
which  is  inconsistent  with  his  being  so  charged,  he  cannot  be 
held  liable  to  the  process.^     Thus,  where  money  or  property  is 

6  Perry  v.  Thornton,  7  R.  I.  15. 

1  Ante,  §  414.  See  also  Estabrook  v.  Earl,  97  Mass.  302;  Russell  v.  Lewis,  15 
Mass,  127;  Knefler  v.  Shreve,  78  Ky.  297;  Cook  v.  Dillon,  9  Iowa,  407;  Hearn  v. 
Crutclier,  4  Yerg.  461;  Haskell  v.  Haskell,  8  Met.  545;  McLaughlin  r.  Swan, 
18  How.  217;  N.  E.  M.  I.  Co.  v.  Chandler,  16  Mass.  275;  Parkt\  Matthews,  36 
Pa.  St.  28;  2  Grant,  136;  Riswickr.  Lamon,  2 Mc Arthur,  172. 

2  Wright  V.  Foord,  5  N.  H.  178;  Delacroix  v  Hart,  24  La  An.  141;  Myer  r. 
Liverpool  etc.  Ins.  Co.,  40  Md.  595;  United  States  v.  Vaughan,  3  Binn.  394;  5 
Am.  Dec.  375;  Hoyt  v.  Swift,  13  Vt.  129;  37  Am.  Dec.  536;  Chapin  v.  Conn.  R. 
Co.,  16  Gray,  69. 

3  Lewin  on  Trusts,  538;  Madison  v.  Andrew,  1  Ves.  60;  Dunmill  r.  Bedford, 
3  Ves.  149;  Twopenny  v.  Peyton,  10  Sim.  487;  Goddenv.  Cowhur.st,  10  Sim.  642; 
Basst!.  Goodsall,  1  Younge  &  Collier,  617;  Madison  v.  Andrew,  1  Ves.  Sr.  60; 
Eaynes  v.  L.  L  B.  Soc.,  4  Cush.  343;  W^illard  v.  Sturtevant,  7  Pick.  194;  Webb 
V.  Perle,  7  Pick.  247;  Adams  v.  Avery,  3  Pittsb.  77. 


207  CAPACITY  IN  wnicn  garnishee  holds.        §  428 

devised  to  trustees  for  the  specific  purpose  of  being  used  for 
the  support  of  the  beneficiary,  his  wife  and  family,  it  cannot  by 
garnishment  be  diverted  from  its  purposes  in  the  hands  of  the 
trustee,  and  subjected  to  the  payment  of  the  debts  of  the  party 
for  whose  support  the  devise  is  made.*  One  having  property 
to  dispose  of  by  will,  or  by  voluntary  gift,  during  the  life  of 
the  donor,  may  attach  such  conditions  to  its  enjoyment  as  he 
may  deem  most  conducive  to  the  welfare  of  the  object  of  hia 
bounty.  And  one  of  these  conditions  may  be  that  the  do- 
nation, whether  testamentary  or  otherwise,  may  be  enjoyed 
by  the  donor,  in  any  way  that  may  be  deemed  best  for  him 
by    the    trustee,    excepting    in    the   payment   of    his    debts.^ 

4  Wl'ere,  pursuant  to  the  regulations  of  a  college,  a  parent  deposited  money 
with  tlie  agent  of  the  institution,  as  security  for  the  tuition  of  his  son,  it  wa3 
held,  that  while  the  education  was  in  progress,  the  agent  could  not  be  charged 
as  garnishee  of  the  parent. — Poe  v.  St.  Mary's  College,  4  Gill.  4i)9. 

6  Nichols  V.  Eaton,  91  U.  S.  71G;  Fisher  v.  Taylor,  2  Rawle  33;  Holdship  u. 
Patterson,  7  "Watts,  547;  Shankland's  Appeal,  47  Pa.  St.  113;  Ashurst  r.  Given, 
5  Watts  &  S.  323;  Brown  v.  Williamson,  3G  Pa.  St.  338;  Still  v.  Spear,  43  Pa. 
St.  168;  Nickell  v.  Handly,  10  Gratt.  336;  Pope's  Executors  v.  Elliott,  8  B.  Mon. 
56;  Campbell  v.  Foster,  35  N.  Y.  361.  The  ground  upon  which  this  doctrine  is 
opposed  is,  that  contrivances  by  which  a  debtor  may  have  the  enjoyment  of 
property  to  the  exclusion  of  his  creditors  are  unconscionable.  But  the  doctrine 
of  the  text  is  fully  supported  in  Nichols  vs.  Eaton  (91  U.  S.  716),  which  was  a 
case  where  the  mother  had  devised  her  estate,  real  and  personal,  to  trustees, 
charged  with  trusts  to  pay  the  rents,  issues  and  profits  to  her  four  children, 
empowering  such  trustees  in  their  discretion  to  deliver  one-half  of  the  propor- 
tion from  which  the  income  of  either  of  the  beneficiaries  was  derived  to 
such  beneficiary;  and  further  providing  that  in  case  of  bankruptcy  or  insol- 
vency of  either  of  the  cestui  que  trusts,  or  in  case  either  should  undertake  to 
alienate  his  or  her  interest,  the  trust  in  relation  thereto  should  cease;  and  for 
the  residue  of  the  life  of  such  bankrupt  or  insolvent,  or  party  alienating,  his 
or  her  proportion  should  be  payable  to  his  or  her  wife  or  children,  or  in  default 
of  marriage  or  issue  should  be  allowed  to  accumulate  in  augmentation  of  the 
principal,  and  ultimately  go  to  others  designated  in  the  will.  One  of  the  sons 
failed  in  business,  made  an  assignment  for  the  benefit  of  creditors,  and  subse- 
quently, on  his  own  petition,  was  declared  bankrupt.  The  action  was  brought 
by  the  assignee  in  bankruptcy  to  subject  the  income  of  the  bankrupt  under  the 
will  to  administration  in  bankruptcy,  for  the  benefit  of  creditors.  Mr.  Justice 
Miller  delivered  the  opinion  of  the  Court,  and  after  calling  attention  to  stat- 
utes exempting  the  property  of  the  debtor  from  execution  for  his  debts,  the 
learned  judge  proceeds  as  follows:  "*  *  *  Nothing  is  withdrawn  from  this  li- 
ability which  was  ever  subject  to  it,  or  to  which  he  had  a  right  to  look  for  its 
discharge  in  payment.  The  analogy  of  this  principle  to  the  devise  of  the  in- 
come from  real  and  personal  property  for  life  seems  perfect.  In  this  country, 
all  wills  or  other  instruments  creating  such  trust  estates  are  recorded  in 
public  offices,  where  they  may  be  inspected  by  every  one;  and  the  law 
in  such  cases  imputes  notice  to  all  persons  concerned  of  all  the  facts  which 
they  might  know  by  the  inspection.    When,  therefore,  it  appears  by  the  record 


§   428         CAPACITY   IN   WHICH   GARNISHEE   HOLDS.  208 

Thus,  where  a  testator  gave  his  executors  power  to  sell  any 
or  all  of  ills  lands,  and  to  pay  over  rents  from  the  time  of  his 
death  until  the  time  of  such  sale,  after  deducting  charges 
thereon,  to  persons  designated,  and  the  executors  had  in  hand 
a  considerable  sum  belonging  to  one  of  such  persons,  it  Avas 
held  the  provisions  of  the  will  constituted  an  active  trust,  and 
consequently,  the  fund  could  not  be  reached  by  judgment 
creditors  of  the  party  to  whom  it  was  payable  in  execution  of 
the  trust. ^  So,  in  a  case  somewhat  similar  as  to  its  leading 
facts  to  that  of  Nichols  v.  Eaton,'  where  money  was  placed  in 
the  hands  of  trustees,  to  be  by  them  paid  out  at  their  discre- 
tion for  the  support  of  a  son  of  the  donor  during  his  life,  and 
afterwards  to  be  distributed  between  the  donor's  other  chil- 
dren, it  was  held  that  the  trustees  could  not  be  held  as  gar- 
nishees of  the  son  in  respect  to  a  portion  of  the  money  in  their 
hands.  They  were  not  indebted  to  him,  nor  were  they  in  the 
possession  of  anything  to  recover  which  he  could  maintain  an 
action  against  them.^  So  also,  where  the  party  summoned  as 
garnishee  was  in  possession  of  a  sum  of  money  which  he  had 
received  from  another  for  the  specific  purpose  of  paying  off  a 
mortgage  on  the  property  of  the  debtor,  it  was  held  in  effect 
that  the  possession  of  such  money  did  not  constitute  him  the 
debtor  of  the  defendant,  nor  could  the  latter  claim  the  money 
of  him  in  specie,  and  the  creditor  could  not  by  the  garnishment 
acquire  any  superior  rights.     The  trustee  of  the  fund  could 

of  a  will  that  the  devisee  holds  this  life  estate  for  income,  dividends,  or  rents 
of  real  or  personal  property,  payable  to  him  alone,  to  the  exclusion  of  the 
alienee  or  creditor,  the  latter  knows  that,  in  creating  a  debt  with  such  per- 
son, he  has  no  right  to  look  to  that  income  as  a  means  of  discharging  it.  He 
is  neither  misled  nor  defrauded  when  the  object  of  the  testator  is  carried  out 
by  excluding  him  from  any  benefit  of  such  a  devise.  Kor  do  we  see  any  rea- 
son, in  the  recognized  nature  and  tenure  of  property,  and  its  transfar  by  will, 
why  a  testator  who  gives  without  any  pecuniary  return,  who  gets  nothing  of 
property  value  from  the  donee,  may  not  attach  to  that  gift  the  incident  of  con- 
tinued use,  of  uninterrupted  benefit  of  the  gift,  during  the  life  of  the  donee. 
"Why  a  parent,  or  one  who  loves  another,  and  wishes  to  use  his  own  property 
in  securing  the  object  of  his  affection,  as  far  as  property  can  do  it,  from  the 
ills  of  life,  the  vicissitudes  of  fortune,  and  even  his  own  improvidence  or 
incapacity  for  self-protection,  should  not  be  permitted  to  do  so,  is  not  readily 
perceived." 

6  Force  v.  Brown,  32  N.  J.  Eq.  118. 

T91U.  S.  716. 

8  White  V.  Jenkins,  16  Mass.  62. 


209  CAPACITY   IN   WHICH   GARNISHEE   HOLDS.  §   428 

only  be  required  to  apply  it  to  the  purpose  for  which  it  was 
received  by  him.^  And  where  the  debts  of  a  firm  were  col- 
lected by  an  agent  who  was  empowered  to  pay  the  amounts  so 
collected  pro  rata  to  creditors,  it  was  held  that  the  service  of 
process  of  garnishment  on  such  agent  could  not  affect  his  duty 
to  apply  funds  as  directed  by  the  trust. ^'^ 

Where,  however,  the  garnishee  sets  up  as  a  reason  why  he 
should  not  be  charged,  that  the  money  in  his  hands  is  held 
subject  to  a  trust,  in  the  contest  with  plaintiff  the  burden  of 
proving  such  trust  is  upon  him.^^  It  is  generally  true  that 
when  the  nature  of  the  trust,  and  the  relations  between  the 
trustee  and  the  cestui  que  trust,  are  such  that  the  latter  may,  at 
his  option,  demand  of  the  former  the  complete  fulfillment  of  the 
trust  by  delivering  the  thing  entrusted,  the  trustee  may  be  held 
as  garnishee  in  an  action  by  the  creditor  of  the  cestui  que  trust^^ 
Thus,  where  under  a  devise  of  real  estate  to  a  trustee,  with  direc- 
tions to  pay  over  to  cestui  que  trust  the  rents  as  they  fell  due, 
such  rents  were  held  to  be  attachable  in  the  trustee's  hands  for 
the  debts  of  the  cestui  que  trust?^  So,  where  a  trust  results  in 
favor  of  the  defendant,  as  against  one  who  has  purchased  prop- 
erty in  his  own  name  with  defendant's  money,  he  may  be  held 
as  garnishee  in  an  action  by  the  creditors  of  the  beneficiary, 
regardless  of  whether  the  latter  wishes  to  bring  the  trustee  to 
account  or  not.  And  where  the  beneficiary  is  entitled  to  the 
rents,  issues,  and  profits  of  land  held  in  the  name  of  another,, 
under  any  kind  of  conveyance,  the  party  from  whom  such  pay- 
ments are  due  may  be  held  as  garnishee  of  the  one  to  whom, 
they  are  due  and  unpaid. ^^  So,  also,  where  one  partner,  with-^ 
out  the  knowledge  or  consent  of  his  co-partners,  paid  his  own 
note  out  of  the  funds  of  an  insolvent  firm,  and  the  creditor  so 
favored  knew  that  the  money  belonged  to  the  firm,  he  was 
held  to  be  a  trustee  of  the  firm,  and  as  such  was  garnishable 

9  Wright  V.  Foord,  5  N.  H.  178. 

"Haust  u.  Burgess,  4  Hughes  C.  C.  560.  See  Truitt  v.  Griffin,  61  111.  26  ;  Col- 
lins V.  Brigham,  11  N.  H.  420. 

11  Frank  v.  Frank,  6  Mo.  App.  588. 

12  Estabrook  v.  Earl,  97  Mass.  302  ;  Haskell  v.  Haskell,  8  Met.  (Mass.)  545  ; 
Parker  v.  Mathews,  36  Pa.  St.  28;  Riswick  v.  Lamon,  2  McArthur,  172.  See 
cases  cited  supra,  at  head  of  this  section. 

13  Knefler  v.  Shreve,  78  Ky.  297. 
"  Eussell  V.  Lewis,  15  Mass.  127. 

n.  Attach.— 14. 


§  428       CAPACITY  IN  -wnicn  garnishee  holds.  210 

at  the  suit  of  the  partnership  creditors.^^  For  like  reason, 
where  one  acting  in  the  capacity  of  guardian  made  a  sale  of 
property  before  he  was  legally  authorized,  and  had  in  his  pos- 
session a  portion  of  the  consideration,  it  was  held,  as  the  sale 
was  invalid,  the  money  in  his  hands  belonged  to  the  purchaser, 
and  as  such  could  be  reached  by  the  creditors  of  the  latter  by 
process  of  garnishment.^^  So  where,  for  any  reason,  as  for 
failure  on  the  part  of  the  seller  to  keep  his  portion  of  the  con- 
tract, or  because  of  a  failure  on  the  part  of  any  one  else,  the 
contract  is  subject  to  cancellation  by  the  party  who  has  paid 
the  money  or  delivered  the  property,  and  entitles  him  to  res- 
titution of  the  sum  so  paid  or  property  delivered,  his  credit- 
ors may  have  process  of  garnishment  against  the  one  in  pos- 
session, upon  the  ground  that  he  holds  it  as  trustee  of  him  who 
is  entitled  to  restitution. i"  In  a  case  of  this  kind,  the  existence 
of  the  relation  of  trustee  and  cestui  que  trust  between  the  gar- 
nishee and  the  defendant  is  no  obstacle  to  holding  the  former 
as  garnishee,  in  a  suit  against  the  latter,  for  the  reason  that  it 
does  not  violate  any  of  the  conditions  of  the  trust.  When, 
Jiowever,  the  trust  set  up  by  the  garnishee  is  illegal,  he  has 
been  held  liable,  regardless  of  the  interests  involved.  Thus, 
where  a  bank  was  garnished  in  a  suit  against  one  of  its  depos- 
itors, who  was  a  treasurer  of  the  county,  and  the  defense  inter- 
posed was,  that  the  money  deposited  belonged  to  the  county, 
and  not  personally  to  the  depositor,  it  was  decided  that  the 
garnishee  was  liable  to  the  private  creditor  of  the  depositor, 
for  the  reason  that  county  treasurers  could  not  lawfully  deposit 
public  funds  in  a  bank.^^  But  the  garnishee  cannot  be  held 
in  every  instance  where  the  trust  under  which  he  holds  the 
property  is  one  which  imposes  a  direct  liability  to  the  debtor. 
Thus  in  Vermont,  where  plaintiff  and  other  creditors  agreed 
that  an  insolvent  corporation  should  convey  to  those  who  were 

15  Johnson  v.  Hersey,  70  Me.  74;  35  Am.  Eep.  303.  See  also  Abbott  v.  Stinch- 
field,  71  Me.  213;  Matthews  v.  Park,  1  Pitts.  22;  Park  v.  Matthews,  36  Pa.  St. 
^8;  2  Grant,  136;  Watkins  v.  Otis,  2  Pick.  88. 

16  Williams  v.  Reed,  5  Pick.  480.  See  also  Thompson  v.  Stewart,  3  Conn.  171; 
8  Am.  Dec.  168. 

1"  Edson  V.  Trask,  22  Vt.  18;  Davis  v.  Marston,  5  Mass.  199;  Emery  v.  Davis, 
17  Me.  252. 
18  South  Bend  Bank  v.  Gandy,  11  Neb.  431. 


211  CAPACITY   IN   WHICH    GARNISHEE   HOLDS.  §    428 

summoned  as  garnishees,  its  property  in  trust  for  the  payment, 
pro  rata^  of  its  creditors,  it  was  decided  that  plaintiff  could  not 
hold  the  trustees  liable,  where  it  did  not  appear  that  the  trust 
was  closed,  or  that  the  trustees  held  any  dividend  to  which 
plaintiff  was  entitled.'^  And  under  the  rule  that  in  the  absence 
of  fraud,  the  attachment  creditor's  rights  cannot  be  superior 
to  those  of  his  debtor  as  against  the  garnishee,^*^  a  creditor  of 
plaintiff  in  the  foregoing  example  could  not  hold  the  trustees 
as  garnishees  before  his  debtor  was  in  a  position  to  demand  a 
settlement  with  the  assignees. 

When  the  garnishee  holds  for  one  who  is  a  trustee,  and  the 
garnishee  has  knowledge  of  the  trust,  it  is  diflBcult  to  determine 
the  extent  to  which  liability  to  the  cestui  que  trust  may  be 
imposed  upon  the  garnishee  for  a  failui-e  to  defend  against  the 
proceeding  against  him  by  the  creditor  of  the  trustee.  It  has 
been  held  in  Pennsylvania,  that  where  a  bank  occupies  this  po- 
sition, and  the  deposit  is  made  by  one  in  his  own  name,  but  in 
reality  as  trustee  of  another,  and  the  bank  accepts  the  deposit 
with  a  knowledge  of  the  trust,  or  is  notified  thereof  by  the 
cestui  que  trust  after  the  service  of  garnishment  process,  it 
cannot  be  held  as  garnishee.^^  Nevertheless,  it  appears  from  an 
earlier  case  in  the  same  State,  that  when  a  bank  undertook  to 
place  this  construction  upon  the  statute,  and  act  upon  the 
theory  that  it  would  not  be  liable,  the  Supreme  Court  of 
the  State  held  otherwise.^^  And  it  is  held  in  Massachusetts, 
that  even  where  the  deposit  is  accepted  with  knowledge  that 
the  money  belongs  to  the  cestui  que  trusty  and  the  latter  on 
being  informed  of  the  garnishment  fails  to  assert  his  claim, 
and  as  a  consequence  the  garnishee  is  charged,  and  pays  the 
judgment,  he  cannot  be  held  liable  to  the  cestui  que  trusty  who 
must  seek  a  remedy  against  his  own  agent  or  trustee.^^  These 
cases  settle  nothing.  It  remains  uncertain,  in  so  far  as  they 
are  relied  on  to  determine  the  question,  whether  the  bank  as 
garnishee  would   be  liable  for  failure  to  make  any  defense 

19  Mansfield  v.  Eutland  Manf.  Co.,  52  Vt.  444. 
2"  Fitzgerald  v.  Hollings worth,  14  Neb.  188. 
21  Farmers'  etc.  Bank  v.  King,  57  Pa.  St.  202. 

2"2  Jackson  v.  Bank  of  U.  S.,  10  Pa.  St.  61;  Bank  of  Northern  Liberties  v. 
Jones,  42  Pa.  St.  536. 
23  Randall  v.  Way,  111  Mass.  506. 


§    429        CAPACITY    IN    WHICH    GARNISHEE   HOLDS.  212 

whatever  to  the  garnishment,  upon  tlie  ground  that  the  de- 
fendant did  not  own  the  money  sought  to  be  attached.  But 
this  feature  of  the  hiw  is  more  fully  noticed  elsewhere.^'*  In 
Kansas  it  is  decided  in  a  somewhat  recent  case,  that  when  mon- 
ey is  deposited  in  a  bank  by  one  who  liolds  it  in  a  fiduciary 
capacity,  its  character  is  not  changed  by  being  placed  to  the 
depositor's  credit,  or  mixed  with  other  moneys  deposited  in 
his  own  name.  And  when  the  equitable  owner  of  the  fund 
asserts  his  right  to  the  money  before  repayment  to  the  depos- 
itor, it  is  not  subject  to  garnishment  for  the  debts  of  the  latter.^ 

§  429.  Officers,  Agents,  etc.  of  Corporations. — Where  the 
action  is  against  a  corporation,  the  question  is  whether  one  of 
its  own  officers  or  agents  may  be  summoned  as  garnishee,  in 
respect  to  money  or  property  in  his  hands,  of  which  he  has 
come  into  possession  in  the  course  of  his  duties  as  such  officer 
or  agent.  The  doubt  raised  is  whether  the  possession  of  the 
officer,  agent,  or  servant  of  the  corporation  is  not  to  all  intents 
and  purposes  the  possession  of  the  principal,  and  for  this  rea- 
son is  beyond  the  reach  of  the  creditors  by  means  of  this  pe- 
culiar process  which  is  supposed  to  be  directed  only  to  disin- 
terested third  parties.^  In  Maine  it  has  been  held,  that  the 
cashier  of  a  bank  could  not  be  charged  as  garnishee  of  a  cor- 
poration whose  fuuds  he  had  as  treasurer  of  such  corporation 
deposited  in  the  bank  ;  ^  but  this  might  have  been  so  held  with- 
out deciding  directly  whether  he  could  not  have  been  served 
with  effect,  where  the  money  was  under  his  immediate  control 
in  the  capacity  of  treasurer  of  the  defendant.  It  is  held  that 
plaintiff  cannot  garnish  himself,^  and  it  may  also  be  assumed 
that  under  the  general  provisions  of  the  statute  authorizing 
service  upon  third  parties,  he  cannot  garnish  the  defendant  in 
the  action,  or  the  judgment  debtor.  Where  there  are  but  two 
classes  of  cases  in  which  the  creditor  may  avail  himself  of  this 
process,  viz  :  1.  Where  the  garnishee  is  indebted  to  defendant. 
for  which  the  latter  may  maintain  an  action  at  law,  and  2. 

^^Ante,  §416. 

25  Morrill  v.  Raymond,  28  Kans.  415  ;  42  Am.  Rep,  167. 

i  Ante,  Ch.XXY. 

2  Sprague  v.  Steam  Navigation  Co.,  52  Me.  592. 

«  Knight  V.  Clyde,  12  R.  I.  119. 


213  CAPACITY    IN   WHICH    GARNISHEE   HOLDS.  §   429 

Where  the  garnishee  has  possession  of  specific  personal  prop- 
erty of  defendant.  The  Courts  will  not  extend  the  operation  of 
the  statute  to  other  cases  that  do  not  clearly  come  within  its 
provisions.*  It  is  clear  that  the  corporation  could  not  main- 
tain an  action  of  debt  against  one  of  its  officers  on  account  of 
money  coming  to  his  hands  and  held  in  his  official  capacity. 
•Nor  could  the  corporation,  while  his  official  control  of  such 
money  continued,  pursue  him  with  an  action  therefor,  as  though 
he  held  it  in  his  own  right.  Nevertheless,  it  is  held  in  Wis- 
consin that  there  is  no  obstacle  to  the  garnishment  of  the  pres- 
ident of  a  bank,  at  the  suit  of  a  creditor  of  the  corporation, 
upon  the  ground  that,  having  property  of  the  defendant  in  his 
hands  or  under  his  control,  he  is  regarded  as  any  other  indi- 
vidual.^ And  to  the  same  effect,  where  the  action  was  asrainst 
a  railroad  company,  and  the  officer  summoned  was  the  cashier, 
with  funds  in  his  possession  derived  from  the  sale  of  tickets 
and  received  for  freights,  a  portion  of  which  (by  the  way) 
was  collected  for  other  companies.^  The  same  doctrine  is  ap- 
proved in  the  State  of  Iowa,  and  ap[)lied  to  the  case  of  a  cash- 
ier of  a  railroad  company,'  and  in  Alabama,  where  a  toll-gate 
keeper  was  garnished  in  a  suit  against  the  corporation.**  While 
in  Pennsylvania  it  is  held,  that  a  ticket  agent  of  a  railroad 
company  could  not  be  garnished,  to  reach  the  avails  of  tickets 
sold  by  him  for  his  principal,  for  the  reason  that  he  could  not 
be  regarded  as  a  third  person.^  This  ruling  is  in  general  ac- 
cord with  the  decisions  in  some  of  the  other  States.^''  But  this, 
like  most  questions  arising  under  the  attachment  law,  cannot 

*  Jones  V.  Crews,  64  Ala.  368. 

5  r.allston  Spa  Bank  ?;.  Marine  Bank,  18  Wis.  490. 

SEverdell  r.  Sheboygan  etc.  R.  Co.,  41  W^is.  395.  In  this  case  it  was  decided, 
that  notwithstanding  the  fact  that  a  portion  of  the  funds  had  been  collected 
for  connecting  companies,  and  credited  to  them  on  the  companies'  books,  it 
all  belonged  to  the  defendant,  who  tliereby  became  the  debtor  of  the  connec- 
ting companies.  This  seems  opposed  to  the  doctrine  announced  in  Bowler  v. 
European  etc.  R.  Co.,  67  Me.  395. 

'First  National  Bank  v.  Davenport  etc.  R.  Co.,  45  la.  120. 

8  Central  Plank  R.  Co.  v.  Samraons,  27  Ala.  380.  See  also  Center  v.McQues- 
tion,  18  Kans.  476. 

"Fowler  v.  Pittsburgh  etc.  R.  Co.,  35  Pa.  St.  22 ;  Hall  v.  Filter  Mf'g  Co.,  10 
Phila.  370. 

i^Pettingell  w.  Androscoggin  E.  Co.,  51  Me,  370;  Flanagan  i>.  Wood,  33  Vt. 
332;  Ante,  §§  328,  346,  347  ;  Neuer  v.  O'Fallon,  18  Mo.  277. 


§    -ISO         CAPACITY   IN   WHICH   GAENISHEE   HOLDS.  214 

be  determined  on  any  broad  general  principle,  except  the  rules 
of  interpretation  applicable  to  statutes. 

§  430.  Agents  and  Servants  of  other  Defendants. — The  prin- 
ciples that  exclude  the  mere  agents  and  servants  of  the  principal 
defendant  from  the  list  of  those  who  may  be  charged  as  gar- 
nishees (where  such  a  principle  is  recognized),  is  that  the  proper- 
ty held  by  them  is  in  the  possession  of  the  owner,  and  should  be 
attached  by  direct  levy.^  It  matters  not  whether  the  princi- 
pal or  employer  be  a  private  corporation  or  an  individual. 
The  capacity  in  which  it  is  held  is  such,  that  no  rights  of  the 
holder  can  be  affected  by  seizing  and  placing  it  under  the  im- 
mediate custody  of  the  law.^  Where  the  statute  restricts  the 
use  of  this  process  to  cases  where  the  one  in  possession  is  a  third 
person,  it  is  held  not  to  lie  where  such  person  is  a  mere  agent 
or  servant,  irrespective  of  whether  the  property  or  money  is  ca- 
pable of  actual  seizure.^  The  authorities  cited  in  the  next 
preceding  section  will  show  the  conflict  that  exists  in  relation 
to  the  question,  and  that  it  must  be  determined,  where  raised, 
accordinoj  to  the  construction  the  governing  statute  will  bear. 

§  431.  Attorneys  at  Law. — There  seems  to  be  nothing  in 
the  relation  of  attorney  and  client  which  necessarily  exempts 
them  from  the  operation  of  the  statutes  in  relation  to  garnish- 
ment, when  the  client  is  defendant,  and  the  attorney  has  pos- 
session of  the  debtor's  property  which  he  holds  in  that  capaci- 
ty.^ The  cases  noted  are  in  the  main  decided  upon  the  ground 
that  the  attorney,  having  money  of  the  client  in  his  hands,  may 
be  charged  as  garnishee,  for  the  reason  that  he  is  indebted  to 
the  client.  And  it  is  held,  in  one  case  at  least,  that  the  attor- 
ney may  be  garnished  on  account  of  money  in  his  hands  which 
belongs  to  his  client,  even  where  no  demand  has  been  made, 
which  is  recognized  as  an  indispensible  condition  to  the  client's 

1  Hall  V.  Filter  Mf'g  Co.,  10  Phila.  370  ;  Flanagan  v.  Wood,  33  Vt.  332. 

2  Ante,  §  349. 

3 Fowler  c.  Pittsburg  &c.  E.  Co.  35  Pa.  St.  22  ;  Pettingell  v.  Androscoggin  R. 
Co.,  51  Me.  370. 

1  Mann  v.  Buford,  3  Ala.  312  ;  37  Am.  Dec.  691  ;  Eiley  v.  Hirst,  2  Pa.  St.  M6  ; 
Tarbell's  Case,  1  Saund.  (Eng.)  67  ;  Taylor  v.  Sherman,  12  Mass.  441 ;  Eidge  v. 
Hardcastle,  8  T.  E.  417  ;  Morse  v.  Holt,  22  Me.  180, 


215  CAPACITY   IN   WHICH   GARNISHEE   HOLDS.         §   431 

right  of  action  for  the  money .2  So  an  attorney  served  with 
process  of  garnishment,  who  had  a  demand  due  defendant  in 
his  hands  for  collection,  was  held  chargable  with  the  amount 
collected  thereon  before  his  disclosure  and  after  service.^ 

2  staples  V.  Staples,  4  Me.  532. 

8  Hurlburt  v.  Hicks,  17  Vt.  19a ;  44  Am.  Dec.  329. 


CHAPTER  XXXIII. 

TRANSFER   OR   INCUMBRANCE    OF   PROPERTY  PRIOR   TO    GAR- 
NISHMENT. 

§  432.  The  fourth  party  to  the  controversy. 
§  433.  The  iuterveuor's  claim  as  proprietor. 
§  434.    When  the  consideration  of  the  transfer  is  brought  in  question  by  the 

answer. 
§  435.     Issues  made  with  the  intervenor. 
§  436.    Consequences  of  failure  on  the  part  of  garnishee  to  give  notice  of  the 

transfer  of  interest. 
§  437.    Equitable  assignment  prior  to  service. 
§  438.    Attempted  transfers  ineffectual. 
§  439.    Fraudulent  assignments. 
§  440.    Eights  of  parties  affected  by  prior  mortgage  of  chattels  in  garnishee's 

possession. 
§  441.    Pledge  as  garnishee. 
§  442.    Other  liens  to  which  property  in  possession  of  the  garnishee  may  be 

subject. 

§  432.  The  Fourth  Party  to  the  Controversy.^— The  pres- 
ent chapter  has  to  do,  not  only  with  the  effect  upon  the  gar- 
nisliee's  liability  of  a  prior  transfer  of  interest,  or  incumbrance 
of  the  property,  with  the  possession  of  which  it  is  sought  to 
charge  him,  but  with  the  manner  in  which  the  rights  of  stran- 
gers to  the  proceeding  may  become  involved,  and  they  as 
claimants  be  drawn  into  the  controversy.  Where  the  statute 
does  not  requii*e  the  claimant  to  intervene,  or  the  peculiar  cir- 
cumstances of  the  case  do  not  render  such  a  course  necessa- 
ry in  order  to  preserve  his  rights,  he  may  disregard  the  pro- 
ceeding, and  stand  upon  the  validity  of  his  claim,  unaffected 
by  the  judgment  rendered  in  the  cause  to  which  he  is  not  a 
necessary  party.^  Where  he  may  be  heard  in  the  matter,  he 
does  not  always  occupy  a  position  which  entitles  him  to  keep 
the  case  in  Court,  when  the  plaintiff  sees  proper  to  abandon 
his  pursuit  of  the  defendant  by  means  of  this  peculiar  process. 

1  Ante,  §  338. 

2  Garrott  v.  Jaffrey,  10  Bush.  413. 


217  TRANSFER   PRIOR   TO    GARNISHMENT.  §   433 

Primarily  the  proceeding  raises  no  issue  as  to  his  rights,  but 
merely  as  to  whether  the  principal  defendant  or  judgment 
debtor  has  an  attachable  interest  in  certain  specific  property 
in  the  possession  or  under  the  control  of  the  garnishee.^  It  la 
only  where  the  answer  sets  up  the  rights  of  the  stranger,  or 
admits  the  title  of  the  defendant  which  Is  claimed  adversely  to 
his  own,  that  he  may  become  interested  in  the  contention. 

The  interest  he  has  may  be  that  of  a  proprietor,  an  assignee 
in  trust,  or  a  mortgagee  or  other  lienor.  Where  he  holds  the 
property  in  pledge,  it  can  be  reached  only  when  he  is  sum- 
moned as  garnishee,  when  no  intervention  will  be  necessary, 
as  the  fact  may  be  put  In  issue  on  the  traverse  of  the  answer.* 

§  433.  The  Intervenor's  Claim  as  Proprietor. — The  party 
designated  herein  as  the  intervener  Is  the  one  who  claims  an  in- 
terest In  the  property  held  by  the  garnishee,  Avhether  as  a  mat- 
ter of  fact  he  intervenes  to  establish  by  that  claim  or  not.  He 
may  put  forward  the  claim  himself,  or  it  may  appear  by  the 
answer  of  the  garnishee,  and  his  title  be  established  for  all 
the  purposes  of  the  action  without  his  ever  appearing  as  a 
party  to  the  contest.  Where  the  claim  of  ownership  Is  as- 
serted by  him  upon  the  ground  of  original  title,  as  between 
himself  and  other  parties.  It  naturally  follows  that  some  evi- 
dence of  the  proprietary  interest  of  defendant  must  be  adduced, 
before  he  will  be  called  upon  to  establish  his  title.  In  what- 
ever manner  his  claim  may  be  put  forward,  it  amounts  to  a  de- 
nial of  the  ownership  of  the  property  by  defendant,  which  is 
an  essential  fact  u[)on  which  the  plaintiff's  judgment  against 
the  garnishee  must  rest.  Consequently,  It  throws  the  burden 
of  proof  upon  the  plaintiff.^  But  the  subject  of  this  chapter 
presupposes  that  the  property  in  question  came  to  garnishee's 
possession  as  the  property  of  defendant,  and  the  question  is 
"whether  it  so  continues,  or  has  been  transferred  to  the  Interve- 
nor  or  the  garnishee  In  the  mean  time. 

One  of  the  common  incidents  of  the  attachment  law  is,  that 
the  defendant  is  so  far  In  Insolvent  circumstances  as  to  be  un- 

8  Dobbins  v.  Hyde,  37  Mo.  114. 
*  Bark  v.  McCall|  3  Binn.  .'i38. 

1  Sheldon  v.  Hinton,  6  111.  App.  216  ;  Simpson  v.  Harry,  1  Dev.  &  Bat;.  Law, 
202. 


§   434  TKANSFEE  PKIOK  TO   GARNISHMENT.  218 

able  to  pay  his  debts  in  the  ordinary  course  of  business,  and 
has  been  in  this  condition  for  some  time  previous  to  the  suit. 
For  this  reason  most  of  the  authorities  upon  the  subject  of  the 
transfer  of  defendant's  interest  in  property  place  great  stress 
upon  the  consideration  of  such  transfer,  as  though  the  title  to 
personal  property  could  not  be  parted  with  except  upon  the 
payment  of  a  consideration  by  the  transferee.  This  is  not 
true,  however.  The  donee  of  personalty  may  acquire  a  per- 
fect title  to  the  gift,  as  though  full  value  had  been  paid  for  it. 
It  was  accordingly  held  that  one  having  received  a  gift  of 
money  was  not  chargable  as  garnishee  of  the  donor,  although 
the  debt  sued  for  existed  prior  to  the  gift ;  it  not  being  dis- 
closed in  the  case  that  the  donor  was  insolvent  or  largely  in- 
debted.2  Still  it  cannot  be  denied,  that  where  the  founda- 
tion of  the  claim  of  title  is  a  voluntary  gift  or  assignment  on 
the  part  of  the  debtor,  the  onus  of  proving  good  faith  in  the 
transaction  rests  more  heavily  upon  the  claimant  than  whea 
he  has  paid  value  for  the  property. 

§  434.  When  the  Consideration  of  the  Transfer  is  brought 
in  question  by  the  Answer. — There  is  no  doubt  that  in  the  ma- 
jority of  instances  where  claims  of  this  kind  are  made,  the  va- 
lidity of  the  alleged  transfer  of  title  will  depend  in  some  meas- 
ure upon  there  being  a  valid  consideration  for  the  transfer. 
This  is  one  of  the  essential  facts,  where  the  good  faith  of  a 
transaction  is  questioned,  and  can  only  be  placed  in  issue  where 
the  transferee  is  a  party  to  the  controversy.  Where  the  pre- 
vious assignment  of  the  debt  or  property  is  to  a  stranger,  and 
appears  only  by  the  answer,  the  plaintiff  cannot,  in  taking  is- 
sue thereon,  put  the  garnishee  upon  the  proof  of  the  honajides 
of  such  transfer,  nor  will  he  be  permitted  to  offer  evidence 
impeaching  such  good  faith.  ^  In  Louisiana,  however,  the 
garnishee  may  be  required  to  prove  the  consideration  of  an 
assignment,  whether  the  garnishee  or  a  third  party  is  alleged 
to  be  the  assignee.^  But  this  ruling  must  be  regarded  as  ex- 
ceptional, and  unsupported  by  any  sound  principle,  except  a3 

2  Whittier  v.  Prescott,  48  Me.  367. 

1  Simpson  v.  Tippin,  5  Stew.  &  Port.  208. 

2  Maher  v.  Brown,  2  La.  492. 


219  TRANSFER   PRIOR   TO    GARNISHMENT.  §   434: 

it  applies  to  the  case  of  an  assignment  to  the  garnishee  liim- 
self,  who  is  already  before  the  Court  by  virtue  of  the  process 
of  garnishment,  and  prepared  to  defend  his  claini.^  To  re- 
quire him  to  establish  the  facts  upon  which  the  rights  of  stran- 
gers to  the  proceeding  depend,  is  to  needlessly  impose  burdens 
upon  him  that  are  inconsistent  with  the  general  spirit  of  the 
law,  and  the  disinterested  position  the  garnishee  is  sujjposed 
to  occupy.^  The  answer  puts  the  question  of  considera- 
tion in  issue,  when  the  alleged  assignment  is  to  the  party 
summoned  as  garnishee.  If  property  has  been  fraudulently 
assigned  to  the  garnishee,  or  to  a  third  party,  who  assigns  it 
to  the  garnishee  prior  to  service  of  process,  without  considera- 
tion paid,  it  is  held  that  the  right  of  the  alleged  proprietor 
will  be  postponed  to  the  rights  of  creditors.  It  is  not  regarded 
as  sufficient  that  a  bargain  has  been  made  and  the  property 
delivered,  where  the  title  of  the  assignor  is  tainted  with  active 
fraud.^  Where  the  transaction  is  fraudulent  on  any  ground, 
as  against  creditors,  the  property  may  be  attached  in  the  hands 
of  the  transferee.^  And  in  order  to  defend  an  assignment  to 
himself  from  the  charge  of  being  fraudulent,  the  garnishee 
must  in  general  not  only  show  that  the  bargain  was  made  in 
good  faith,  but  upon  a  valid  consideration.''  Where  a  debt 
was  guaranteed  without  the  knowledge  of  the  debtor,  for  a 
consideration  paid  by  the  creditor,  and  the  debtor,  upon  fail- 
ure, at  the  suggestion  of  his  creditor,  and  with  no  knowledge 
of  the  guaranty,  made  an  absolute  transfer  of  his  property  to 
the  guarantor  to  secure  the  debt,  and  the  transferee  was 
served  with  process  of  garnishment  at  the  suit  of  other  credit- 
ors, it  was  held  that,  as  there  was  no  privity  beween  the  debtor 
and  the  guarantor  as  to  the  contract  of  guaranty,  no  right  of 
action  could  accrue  by  reason  of  payment  by  the  guarantor, 
and  consequently  there  was  no  consideration  for  the  transfer 
that  would  render  it  valid  as  to  creditors.  The  garnishee  was 
accordingly  held  chargable.^      The  question  of  consideratioq 

8  Cowles  V.  Coe,  21  Conn.  220. 

*  Simmons  v.  Guyon,  57  Ala.  Ill;  Sexton  v.  Amos,  39  Mich.  695, 

6  Dixon  V.  Hill,  5  Mich.  404. 

*  Kelley  v.  Lane,  42  Barb.  594.    But  see  Lawrence  v.  Bank  of  Republic,  35 
N.  Y.  320. 

7  Giddings  v.  Coleman,  12  N.  H.  153;  Maher  v.  Brown,  2  La.  492. 

8  Knight  V.  Gorham,  4  Me.  492. 


§  485      TRANSFER  PRIOR  TO  GARNISHMENT.         220 

has  been  held  of  sufficient  importance  to  overcome  objections 
to  transfers  to  the  party  summoned,  that  would  be  considered 
fatal  to  their  validity  on  other  grounds.  Thus,  one  to  whom 
a  debtor  had  assigned  his  effects  for  the  benefit  of  his  credit- 
ors, was  summoned  as  garnishee,  and  it  appearing  that  after 
the  assignment  he  had  purchased  at  a  discount  demands  against 
the  debtor,  exceeding  in  amount  the  value  of  the  effects  trans- 
ferred to  him,  it  was  held  that  he  was  not  chargable,  whether 
the  assignment  was  valid  in  law  or  not.^  Accordino;  to  the 
by-laws  of  a  voluntary  association  of  brokers,  when  a  member 
became  insolvent  and  failed  to  settle  with  his  creditors,  his 
seat  in  the  board  was  to  be  sold,  and  the  proceeds  paid  pro 
rata  to  the  creditors  in  the  board.  A  member  of  the  board, 
against  whom  other  members  had  claims,  became  insolvent, 
and  sold  his  seat.  No  transfer  could  be  made,  however,  until 
the  purchase  money  was  paid  to  the  treasurer,  and  it  was  so 
paid  with  the  consent  of  the  insolvent  member,  and  the  seat 
was  transferred  to  the  purchaser.  It  was  held  that  this  was 
not  a  voluntary  sale,  and  the  purchaser  and  board  of  brokers 
could  not  be  charged  as  garnishees. ^*^ 

§  435.  Issues  made  with  the  Intervenor. — In  Alabama,  it 
is  provided  by  statute  that  the  plaintiff  in  garnishment  may 
contest  with  the  transferee  the  right,  money  or  property  sought 
to  be  garnished.^  Under  this  statute,  when  proper  proceed- 
ings are  taken,  the  garnishee  must  hold  the  money  in  hand 
until  the  contest  is  decided.  And  where  the  transferee  fails 
to  appear  after  proper  notice  and  propound  his  claim,  judg- 
ment should  be  rendered  in  favor  of  the  plaintiff  and  against 
the  garnishee  for  the  amount  admitted  in  the  answer.^  And 
when  a  judgment  debtor  has  not  intervened  for  the  purpose  of 
contesting  the  answer,  he  will  not  be  heard  to  move  to  dismiss 
the  garnishment  for  want  of  security  for  costs.^     Thus,  in  case 

9  Emerson  v.  Wallace,  20  N.  H.  567;  Hutchins  v.  Sprague,  4  N.  H.  469;  17 
Am.  Dee.  439  ;  Ripley  v.  Severance,  6  Pick.  474  ;  17  Am.  Dec.  397;  Thomas  v. 
Goodwin,  12  Mass.  140. 
M  Evans  v.  Adams,  81  Pa.  St.  443. 

iCodeof  1876,  §3302. 

2Saller  r.  Ins.  Co.,  62  Ala.  221  ;  Simmons  v.  Guyon,  57  Ala.  111. 

3  Edmondson  v.  DeKalb  County,  51  Ala.  103. 


221  TRANSFER    TRIOR   TO    GARNISHMENT.  §    435 

of  such  intervention  by  transferee,  and  a  failure  on  the  part 
of  the  defendant  to  formally  question  the  truth  of  the  answer, 
the  controversy  is  between  the  })laintiff  and  the  claimant.  So, 
under  a  Wisconsin  statute,  the  debtor  was  not  a  necessary  j)ar- 
ty  to  the  contest,  where  the  garnishment  was  in  aid  of  an  exe- 
cution. The  garnishee,  by  his  verified  answer,  stated  that  the 
debt  or  jiroperty  was  claimed  by  another,  and  upon  this  affi- 
davit the  Court  ordered  the  claimant  to  be  made  a  party  de- 
fendant. After  this,  the  real  parties  to  the  issues  then  first  to 
be  tried  were  the  plaintiff  and  the  claimant.'*  In  Virginia  it 
was  also  held,  that  where  the  answer  disclosed  an  assignment 
of  interest  in  the  subject  of  controversy,  the  assignee  should 
be  required  to  appear  and  maintain  or  relinquish  his  claim,  as 
well  as  to  state  the  nature  thereof.^  In  Illinois  the  statute 
provides  for  the  appearance  of  the  claimant ;  and  where  he 
appears,  though  informally,  and  is  recognized  as  a  party,  and 
his  rights  adjudicated,  he  is  regarded  as  a  party  in  such  sense 
as  to  be  entitled  to  have  the  record  reviewed  on  appeal.^  It  is 
also  held  in  Minnesota,  that  the  clainiiint  should  be  allowed  to 
appear  ;^  which,  however,  is  quite  different  in  effect  from  the 
law  that  empowers  tlie  Court  to  require  him  to  appear  and 
propound  his  claim.  In  Pennsylvania  it  is  held,  that  feigned 
issues  should  be  framed  between  opposing  claimants,  so  far  as 
they  are  known  to  the  Court,  and  that  it  was  error  to  make 
the  garnishee  a  party  to  such  issues,  and  subject  him  to  ex- 
pense and  costs,  when  he  made  no  claim  to  the  fund  and  was 
in  no  default.^ 

In  Maine,  when  the  answer  discloses  the  fact  that  the  sub- 
ject of  controversy  is  claimed  by  some  one  other  than  the  de- 
fendant, or  the  garnishee,  the  jjlaintiff  is  required  to  have  the 
claimant  cited  to  appear,  or  in  case  he  does  not  come  in  volun- 
tarily, the  garnishee  will  be  discharged.^ 

The  principle  upon  which  the  contest  is  conducted  between 
the  plaintiff  and  the  interveuor,  where  the  latter  appears,  is 

••Hewitt  V.  Follett,  51  "Wis.  2G5. 

6  Chesapeake  etc.  R.  Co.  v.  Paine,  29  Gratt.  502. 

6  Sheldon  v.  Hinton,  6  111.  App.  216. 

7  Crone  v.  Brann,  23  Minn.  239. 

8  Fish  V.  Keeney,  91  Pa.  St.  138. 

9  Jordan  v.  Harmon,  73  Me.  259 ;  Look  v.  Brackett,  74  Me.  347. 


§   435  TRANSFER   PRIOR   TO   GARNISHMENT.  222 

essentially  different  from  that  by  the  plaintiff  against  the  gar- 
nishee, when  the  claim  of  the  stranger  only  appears  incident- 
ally. Thus,  under  the  Alabama  statute,  where  the  transferee 
is  brought  into  the  case  by  process,  it  is  held  that  the  claim- 
ant must  rest  upon  the  superiority  of  his  own  right.  The 
onus  of  establishing  the  validity  of  a  transfer  of  the  demand 
rests  upon  the  claimant ;  and  when  he  claims  by  transfer  from 
a  transferee,  he  is  required  to  show  the  validity  of  both  trans- 
fers, and  show  that  the  first  transfer  was  made  prior  to  service 
of  garnishment,  and  for  a  valuable  consideration  ;  and  if  not 
for  a  valuable  consideration,  that  the  transfer  to  himself  was 
for  value. ^'^  In  Michigan,  on  the  other  hand,  where  the  law 
has  made  no  provision  for  any  hearing  on  the  part  of  third 
persons  claiming  interest  in  the  subject  of  garnishment,  it  is 
held  that,  though  the  parties  so  interested  cannot  be  bound  by 
the  judgment  in  their  absence,  the  garnishee  will  be  protected 
as  far  as  possible  from  double  liability  ;  and  to  that  end  the 
onus  is  cast  upon  the  plaintiff  of  showing,  not  only  that  the 
defendant  had  a  demand  against  the  garnishee,  but  that  such 
demand  has  not  been  assigned.^i  In  the  absence  of  compulsory 
process  to  bring  the  claimant  in  as  a  party,  or  his  voluntary 
appearance,  his  interests  cannot  be  affected  by  the  judgment.^" 
And  if  the  Court  proceeds  so  far  as  to  render  judgment  against 
the  garnishee,  upon  the  theory  that  the  alleged  transfer  is  in- 
valid, the  consequence  must  be  to  expose  the  garnishee  to  the 
danger  of  double  liability. 

Where  there  is  a  doubt  whether  the  assignment  was  made 
prior  or  subsequent  to  the  garnishment,  there  seems  to  be  a 
statute  in  Iowa  which  has  the  effect  of  discharging  the  gar- 
nishee from  further  liability,  when,  without  notice  of  the  as- 
signment, he  delivers  the  money  or  property  into  the  custody 
of  the  Court,  and  leaves  the  parties  in  interest  to  litigate  their 
rights  in  respect  to  it.^^ 

When  the  claimant  has  been  ordered  to  interplead  under  the 
Wisconsin  statute,  and  issue  is  taken  on  his  answer,  the  plain- 

10  Winslow  V.  Bracken,  57  Ala.  368  ;  Davis  v.  Fogg,  58  N.  H.  159. 
u Hewitt  V.  Wagar  Lumber  Co.,  38  Mich.  701.    See  also  Hathaway  ».  Reed, 
127  Mass.  136  ;  Sexton  v.  Amos,  39  Mich.  695. 
^Gage  V.  Stimson,  26  Minn.  64  ;  Simpson  v.  Tippin,  6  Stew.  &  Port.  208. 
13 Howe  V.  Jones,  57  Iowa,  130. 


223  TRANSFER   PRIOR   TO    GARNISHMENT.  §    436 

tiff  cannot,  after  going  to  trial  thereon,  object  that  the  answer 
was  not  verified.  And  if  it  is  found  that  a  part  of  the  fund 
hehl  by  the  garnishee  belongs  to  the  interpleaders,  judgment 
will  bo  rendered  against  plaintiff  for  costs,  and  in  favor  of  the 
claimant  for  so  much  as  belongs  to  him.^* 

The  effect  of  the  citation  upon  the  claimant  is  to  require  him 
to  appear.  And  when  he  is  properly  cited  he  becomes  a  party 
to  the  proceeding,  and  is  bound  by  the  judgment,  whether  he 
appears  or  not.^^  The  same  result  would  follow  where  the 
appearance  is  voluntary  on  the  part  of  the  intervenor. 

§  436.  Conseqnences  of  Failure,  on  the  part  of  Gramishee,  to 
give  Notice  of  the  Transfer  of  Interest,  and  of  the  Gramish- 
ment. — When  there  has  been  a  transfer  of  interest  in  the  sub- 
ject of  garnishment,  of  which  the  garnishee  has  been  in  any 
manner  informed,  there  are  two  kinds  of  notice  which,  in  cer- 
tain emergencies,  it  is  his  duty  to  give  ;  or,  rather,  two  parties 
in  interest,  who  have  a  right  to  look  to  him  for  notice  of  what 
will  affect  their  interests.  1.  The  transferee  may  depend 
upon  him  for  notice  of  the  proceeding,  by  which  it  is  sought 
to  appropriate  the  thing  transferred  to  the  payment  of  plain- 
tiff's  demand  against  the  transferer.  2.  The  plaintiff  and 
the  Court  are  entitled  to  notice  of  the  transfer.  For  failure  to 
give  notice  to  the  transferer,  and  in  consequence  of  its  not 
appearing  that  the  title  to  the  property  has  changed  hands 
prior  to  service  of  process,  the  garnishee  will  be  held  doubly 
liable.  Judgment  may  go  against  him  in  the  proceeding,  and 
the  judgment  will  be  no  defense  to  an  action  against  him  by 
the  transferee.^  Where  the  failure  is  to  bring  the  transfer  to 
the  notice  of  the  Court,  the  same  result  follows.^  Thus,  re- 
spondent in  a  criminal  case  deposited  with  his  attorney  some 
money  belonging  to  his  employer,  to  secure  bail,  and  the  at- 
torney turned  the  money  over  to  the  sureties  on  the  bail  bond  ; 
the  latter  being  afterwards  grarnished  at  the  suit  of  certain 
creditors  of  respondent,  paid  out  the  money  to  satisfy  their 

"Kirby  v.  Corning,  54  Wis.  599. 

"Born  V.  Staaden,  24  111.  320  ;  Fisk  v.  Weston,  5  Me.  410. 

1  Smith  V.  Ainscow,  11  Neb.  476. 

2  Tabor  v.  Van  Vranken,  39  Mich.  793;  Tracy  v.  McGarty,  12  R.  1. 168;  Lam- 
kin  V.  Phillips,  9  Porter,  98  ;  Field  v.  McKinney,  60  Miss.  763. 


§  437       TRANSFER  PRIOR  TO  GARNISHMENT.         224 

claims,  though  he  knew  when  garnished  that  it  was  the  money 
of  the  employer.  It  was  held  in  this  case,  that  the  garnishee 
should  have  disclosed  this  ;  and  in  a  suit  against  him  by  the 
employer  for  money  had  and  received,  the  payment  under  gar- 
nishment was  no  defense.^  The  liability  would  have  been  the 
same  if  the  money  had  been  claimed  by  one  as  prior  transfer- 
ee. This  is  true,  even  where  the  garnishee  has  received  no 
notice  of  such  transfer  prior  to  his  answer,  provided  he  is 
made  aware  of  the  fact  in  time  for  him  to  make  application 
to  the  Court  for  leave  to  amend,  by  stating  the  assignment.^ 
But  where  the  writ  was  against  S.  S.,  and  a  bank  was  sum- 
moned as  garnishee,  after  which  the  process  was  amended  to 
run  against  S.  F.  S. ;  and  during  the  Intermediate  time  the 
bank  paid  to  S.  F.  S.  the  funds  by  him  deposited,  with  no  no- 
tice that  S.  F.  S.  was  the  party  intended,  and  upon  whom  the 
writ  was  served,  It  was  held  that  it  could  not  be  charged  as 
garnishee.^ 

The  double  liability  to  which  the  garnishee  Is  exposed  by 
his  own  laches  does  not  depend  upon  the  duty  to  give  the  no- 
tice being  prescribed  by  statute.  If,  as  the  consequence  of  a 
failui'C  to  notify  the  transferer,  he  fails  to  appear,  whether 
voluntarily  or  In  obedience  to  the  statute,  and  judgment  goes 
against  the  garnishee,  he  has  the  consequences  to  bear.  And 
if  the  judgment  Is  rendered  against  him  because  of  his  con- 
cealment of  the  transfer.  It  needs  no  statute  to  save  the  rights 
of  the  Innocent  transferee  from  being  affected  by  such  judg- 
ment, however  onerously  it  may  bear  upon  the  garnishee. 

§  437.  Equitable  Assignment  prior  to  Service. — The  im- 
portant question  to  be  determined  In  passing  upon  the  rights 
of  rival  claimants  to  property  In  the  hands  of  the  garnishee, 
when  either  of  the  parties  claims  by  virtue  of  a  prior  trans- 
fer of  title.  Is  not  whether  any  technical  formality  has  been 
omitted,  but  whether  the  attempted  transfer  was  so  far  effect- 
ual that  it  divested  the  entire  interest  of  the  defendant,  and 

8  Kimball  v.  Macomber,  50  Mich.  362.   Contra,  Randall  v.  Way,  111  Mass, 
606. 
^  Lewis  V.  Dunlap,  57  Miss.  130 ;  Tracy  v.  McGarty,  12  E.  I.  168. 
6  Terry  v.  Sisson,  125  Mass.  560. 


225  TRANSFER  PRIOR  TO   GARNISHMENT.  §   437 

vested  It  in  the  transferee.  If  this  was  accomplished,  however 
informally,  the  garnishee  cannot  be  held  liable,  for  the  attach- 
ing creditor  can  only  hold  the  garnishee  for  such  interest  as 
defendant  had  at  the  time  the  process  was  served.^  According 
to  this  principle,  where  a  fund  was  in  the  hands  of  debtor's 
assignees,  upon  which  he  gave  orders  to  several  of  his  cred- 
itors, aggregating  the  full  amount  of  such  fund,  and  the  as- 
signees accepted  notice  of  these  orders  without  accepting  the 
orders  themselves,  subsequent  to  which  they  were  summoned 
as  garnishees,  it  was  held  that  the  orders  and  the  acceptance 
of  notice  thereof  operated  as  equitable  assignments  of  the  fund, 
so  that  the  debtor  had  parted  with  all  his  interest  therein  prior 
to  service  of  summons,  and  the  garnishees  were  not  chargable,^ 
But  as  we  have  already  seen,  the  validity  of  an  equitable  as- 
signment does  not  depend  upon  the  party  in  possession  of  the 
property  having  notice  within  a  particular  time.^  If  the  transfer 
is  complete  as  between  the  parties  to  the  transaction,  the  notice 
may  come  afterwards.^  As  for  example,  where  a  policy  of  insur- 
ance, on  goods  at  sea,  was  assigned  by  a  debtor  to  his  creditor, 
and  the  goods  were  lost.  Subsequently  a  creditor  of  the  as- 
signor garnished  the  underwriter,  who  had  not  received  notice 
of  the  assignment  of  the  policy,  and  the  Court  held  that  the 
assignment  was  sufficient  to  vest  an  equitable  right  in  the 
assignee,  and  hence  the  garnishee  could  not  be  charged.^  So 
even  a  power  of  attorney,  authorizing  a  party  to  transfer  to 
himself  certain  shares  of  bank  stock  as  security  for  a  debt  due 
to  him  as  trustee,  was  held  to  be  an  equitable  assignment  of 
such  stock ;  so  far,  at  least,  as  was  necessary  to  prevent  the 

1  United  States  v.  Vaughan,  3  Binn,  394  ;  5  Am.  Dec.  375  ;  Wakefield  v.  Mar- 
tin, 3  Mass.  558  ;  Walling  v.  Miller,  15  Cal.  38  ;  Noble  v.  Thompson  Oil  Co.,  79 
Pa.  St.  S54  ;  21  Am.  Rep.  66  ;  Smith  v.  Clark,  9  Iowa,  241 ;  Fitzgerald  v.  Hol- 
lingsworth,  14  Neb.  188  ;  Sandidge  v.  Graves,  1  Patton,  Jr.,  &  Heath,  101 ;  Mc- 
Guire  v.  Pitts,  42  Iowa,  535 ;  Ray  v.  Faulkner,  73  111.  469  ;  Providence  Co. 
Bank  v.  Benson,  24  Pick.  204 ;  Smith  v.  Clark,  9  Iowa,  241. 

2  Claflin  V.  Kimball,  52  Vt.  6  ;  Adams  v.  Robinson,  1  Pick.  461  :  Brazier  v. 
Chappel,  2  Brev.  107  ;  Colt  v.  Ives,  31  Conn.  25  ;  Newell  v.  Blair,  7  Mich.  103. 

8  Svpra,  §  434. 

4  Lewis  V.  Dunlap,  57  Miss.  130 ;  Tracy  v.  McGarty,  12  R.  I.  168  ;  Page  v. 
Crosby,  24  Rick.  211  ;  McGuire  v.  Pitts,  42  Iowa,  535. 

8  Wakefield  v.  Martin,  3  Mass.  558.     See  Balderstone  v.  Monro,  2  Cranch  C. 
C.  623  ;  Holdman  v.  Hillsborough  &c.  R.  Co.,  2  Handy,  101 ;  Canal  Co.  v.  In- 
eurance  Co.,  2  Phila.  354. 
11.  Attach.— 15. 


§   437  TRANSFER  PRIOR   TO   GARNISHMENT.  226 

party  giving  it  from  exercising  any  authority  or  control  over 
the  stock,  in  contravention  of  the  rights  of  the  assignee. *"  So 
where  bank  stock  was  sokl  by  delivery  of  the  certificate,  with 
a  power  of  attorney  authorizing  the  transfer  of  the  stock  on 
the  books  of  the  bank,  though  the  stock  was  not  transferred 
until  afterwards,  the  Court  held  that  the  assignment  was  com- 
plete when  the  defendant  had  parted  with  his  interest  irrevo- 
cably.'^ The  garnishee  may  secure  his  discharge  by  establish- 
ing the  fact  that,  prior  to  service,  he  accepted  drafts  or  orders 
requiring  him  to  pay  over  any  sums  in  his  hands,  or  to  deliver 
any  property  or  thing  held  by  him,  which  he  originally  re- 
ceived as  the  property  of  defendant,  unless  the  truth  of  such 
answer  or  the  validity  of  such  assignments  is  successfully  con- 
troverted by  the  plaintiff.^  When  the  assignee  is  notified  of 
the  transfer  to  himself  and  accepts  it,  whether  in  writing  or 
words,  it  will  in  general  be  held  sufficient  to  operate  as  an  as- 
signment of  the  interest  of  the  assignor.^  Thus,  where  a  par- 
ty who  was  summoned  as  garnishee  had  previously  received  a 
sum  of  money  from  the  defendant,  to  pay  over  to  another 
party,  and  afterwards,  seeing  the  party  for  whom  it  was  intend- 
ed, informed  him  of  its  receipt,  and  promised  to  pay  it  over; 
but  was  requested  by  the  payee  to  hold  the  money  subject  to 
his  order  ;  this  was  held  sufficient  to  give  the  payee  an  abso- 
lute right  to  the  money,  and  it  was  no  longer  subject  to  at- 
tachment as  the  property  of  the  payor. ^** 

Wliere  there  is  an  assignment  made  for  the  benefit  of  certain 
preferred  creditors  who  are  parties  to  the  assignment,  the  sur- 
plus in  the  hands  of  the  assignee,  after  satisfying  the  demands 
of  the  participating  creditors,  would  be  subject  to  garnishment 
at  the  suit  of  other  creditors.  But  the  assignee  would  not  be 
held  chargable  before  he  had  realized  on  all  the  property  as- 
signed, or  at  least  sufficient  to  leave  a  surplus  in  his  hands. 

6  Matheson  v.  Rutledge,  12  Rich.  41. 

7  United  States  f.  Vaughan,  3  Binn.  394  ;  5  Am.  Dec.  375. 

8  Legro  V.  Staples,  16  Me.  252  ;  Dobbins  v.  Hyde,  37  Mo.  114  ;  Nesmith  v. 
Drum,  8  Watts  &  S.  9  ;  Lamkin  v.  Phillips,  9  Porter,  98. 

9  Dwight  V.  Bank  of  Michigan,  10  Met.  (Mass.)  58  ;  Burnside  v.  McKiley,  12 
La.  An.  505  :  Commack  v.  Floyd,  10  La.  An.  351. 

w  Brooks  V.  Hildreth,  22  Ala.  469  ;  Simpson  v.  Bibber,  59  Me.  196  ;  Mansard 
V.  Daley,  114  Mass.  408  ;  Ray  v.  Faulkner,  73  111.  469 ;  Dolaon  v.  Brown,  13  La. 
An.  551. 


227  TRANSFER   PRIOR   TO    GARNISHMENT.  §    437 

And  where  real*  estate  and  choses  in  action  were  assigned  with 
other  property,  the  Court  refused  to  direct  that  the  creditors 
should  be  paid  out  of  the  proceeds  of  sucli  real  estate  and 
choses  in  action,  so  as  to  leave  the  proceeds  of  goods  subject 
to  garnishment  process.^^  Holding  funds  as  security  for  cred- 
itors of  a  certain  class,  does  not  render  the  party  holding  them 
liable  as  garnishee  to  other  creditors  until  those  of  this  class 
are  paid.^^  Where  the  transfer  was  made  to  a  newly  orga- 
nized corporation,  by  one  who  purchased  the  property  at  sher- 
iff's sale,  with  money  supplied  by  the  debtor  corporation,  and 
such  transfer  was  made  in  good  faith,  with  the  assent  of  the 
directors  and  stockholders  of  the  old  company,  which  was  thus 
merged  in  the  new,  it  was  held  that  the  party  who  had  acted 
in  making  the  purchase  and  transfer  could  not  be  held  as  gar- 
nishee in  a  suit  against  the  old  company. ^^  An  equitable  as- 
signment of  a  part  of  the  demand  or  chose  in  action  may  be 
enforced  against  the  attaching  creditor,  when  the  assignee  has 
been  made  a  party  to  the  garnishment  proceedings,  as  required 
by  statute.^* 

Under  the  general  principle,  that  a  creditor  has  no  superior 
rights,  as  against  the  garnishee,  to  those  he  would  have 
against  the  debtor,  it  is  held  in  Missouri,  that  where  partner- 
ship property  was  assigned  by  one  partner  for  the  payment  of 
his  individual  debts,  a  judgment  creditor  of  another,  obtained 
for  a  debt  of  the  firm,  could  not  maintain  the  proceeding  by 
garnishment  against  the  auctioneer  with  whom  the  property 
was  placed  for  sale.'^ 

In  this  and  preceding  sections,  assignments  for  value,  for  the 
benefit  of  the  assignee,  and  assignments  for  the  benefit  of  cred- 
itors of  the  assigrnor,  have  been  considered  too^ether.  The  lat- 
ter  will  be  regarded  as  valid  and  binding  on  the  assignor,  and 
hence  on  all  persons  claiming  under  him,  until'  impeached  by 
the  contesting  creditor.^^ 

"  Gore  V.  Clisby,  8  Pick.  555. 

12  Haven  v.  Wentworth,  2  N.  H.  93. 

"Balliet  v.  Brown,  103  Pa.  St.  546. 

"Exchange  Bank  v.  McLoon,  73  Me.  498  ;  40  Am.  Eep,  388. 

iSFenton  v.  Block,  10  Mo.  App,  536. 

l«Hecht  V.  Green,  61  Cal.  269. 


§    438  TEANSFER   PRIOR   TO    GARNISHMENT.  228 

§  438.  Attempted  Transfers  Ineffectual. — Although  the  as- 
signment may  be  effectual  to  transfer  all  the  rights  of  the  as- 
signor, when  the  party  in  possession  is  not  informed  thereof 
until  after  service  of  process  of  garnishment,  it  is  generally,  if 
not  universally,  essential  that  the  assignee  should  be  advised 
of  the  transaction  in  order  to  render  it  complete.^  The  reason 
of  this  is,  that  there  must  be  assent  on  the  part  of  the  assignee, 
which  may  be  presumed  where  he  is  shown  to  have  had  no- 
tice of  the  assignment;  but  when  he  does  not  become  priv\'  to 
the  transfer  until  after  service,  such  assent  cannot  be  su[)posed 
to  have  been  given  while  he  was  yet  ignorant  of  the  fact.^ 
"Where  the  assignee  expi-essly  repudiates  the  assignment,  and 
claims  no  interest  in  the  2)roperty  or  fund,  the  pretended  trans- 
fer will  be  held  ineffectual  for  any  purpose.^  And  where  a 
draft  is  drawn  upon  the  depositary,  which  he  refuses  to  accept, 
otherwise  than  upon  conditions  that  do  not  appear  to  have  been 
acceded  to  by  the  drawer,  it  is  held  that  the  title  does  not  pass.* 
Where  the  assent  of  the  depositary  is  necessary,  that  must  ap- 
pear to  have  been  given  in  a  manner  to  bind  him  to  the  assign- 
ee, prior  to  service  of  process.  A  bank  is  not  liable  to  the 
drawer  of  a  draft  or  check  until  it  is  accepted,  and  there  is  a 
promise  to  the  holder.  Hence,  a  bank  summoned  as  gar- 
nishee of  one  of  its  depositors  was  held  liable,  though  the  money 
was  deposited  for  the  express  purpose  of  meeting  future  drafts, 
of  which  the  bank  had  notice,  for  the  reason  that  the  bank 
sustained  no  contract  I'elations  with  the  holders,^  The  mere 
direction  to  the  depositary  to  pay  or  deliver  to  the  assignee 
has  no  effect,  until  the  assignee  is  informed  of  the  provision 
made  for  his  benefit,  and  then  only  when  he  does  not  dissent  from 
the  arrangement  made  for  his  benefit.^     A  draft  or  order  made 

1  Kelly  V.  Roberts,  40  N.  Y.  432  ;  Xeuer  v.  O'Fallon,  18  Mo.  277;  59  Am.  Dec. 
313  ;  Huntley  v.  Stone,  4  Wis.  91 ;  Eicbelbergerr.  Murdock,  10  Md.  373  ;  Clark 
V.  Cilley,  36  Ala.  652  ;  Center  w.  McQuesten,  18  Kansas,  476;  Brown  v.  Foster, 
4  Cusb.  214. 

2  Baker  v.  Moody,  1  Ala.  315  ;  Sproule  v.  McNulty,  7  Mo.  62  ;  People  v.  Jobn- 
Bon,  14111.  342;  Robertson  v.  Scales,  13  La.  An.  545;  State  v.  Brownlee,  2 
Speers,  579. 

3  Myatt  V.  Lockart,  9  Ala.  91. 

*  Dolson  V.  Brown,  13  La.  An.  551. 
s  Mayer  v.  Cbattaboocbie  Nat'l  Bank.  51  Ga.  325. 

6  Briggs  V.  Block,  18  Mo.  281;  Connelly  v.  Harrison,  16  La  An,  41;  Hart  v. 
Forbes,  60  iliss.  745. 


229  TRANSFER  PRIOR  TO   GARNISHMENT.  §  439 

payble  to  the  order  of  the  drawer  cannot  affect  this  purpose, un- 
less such  draft  has  been  indorsed  to  a  third  person  prior  to  ser- 
vice." In  any  case,  the  construction  of  which  the  transaction  is 
susceptible  must  be  such  that  the  title  to  the  thing  transferred 
must  have  passed  completely  out  of  the  assignor,  beyond  his  jiow- 
er  of  recall.  What  is  less  than  this  will  prove  insufficient  to 
affect  the  liability  of  the  party  In  possession,  when  summoned 
as  garnishee.^  A  promise  by  the  garnishee  to  pay  the  agent 
of  the  principal  defendant  does  not  affect  his  liability.^  As- 
signments made  for  the  benefit  of  creditors  to  protect  the  as- 
signee from  liability  as  garnishee,  must  in  general  be  In  ac- 
cordance with  law.^**  Hence,  where  an  assignment  was  made 
under  and  pursuant  to  a  statute  that  had  been  repealed.  It  was 
held  that  the  assignee  would  be  chargable  as  garnishee. ^^ 

§  439.  Fraudulent  Assignments. — The  effect  of  an  assign- 
ment of  defendant's  Interest  may  be  defeated  Toy  fraud. ^  And 
it  is  held  that  the  fraud  practiced  In  the  sale  or  assignment  of 
defendant's  property  will  follow  It  into  the  hands  of  a  subse- 
quent bargainee,  who  has  taken  possession  under  a  contract  of 
sale,  but  has  not  yet  paid  the  agreed  price. ^  Garnishment  is 
held  to  be  a  remedy  peculiarly  appropriate  for  reaching  the 
effects  of  a  debtor  fraudulently  transferred,  In  the  hands  of  the 
fraudulent  transferee.^  This  is  one  of  the  matters  that  come 
up  for  consideration  in  every  case  where  the  Issues  to  be  tried 
are  between  the  plaintiff  and  the  Intervenor.  It  may  arise  as 
a  question  of  good  or  bad  faith  on  the  part  of  the  debtor,  and 
the  purchaser's  participation  in  any  alleged  intentional  wrong, 
and  the  validity  of  the  consideration.  If  so,  evidence  of  the 
claimant's  knowledge  of  plaintiff's  claim  against  defendant, 
and  of  his  seeking  to  hold  the  fund  in  the  garnishee's  hands, 
is  regarded  as  competent  evidence.^     And  so  any  fact  tending 

■?  Cushmau  v.  Haynes,  20  Pick.  132. 

8  Mansard  v.  Daily,  114  Mass.  408;  Redd  v.  Burrus,  58  Ga.  574. 

9  Cliesley  v.  Coombs,  58  N.  H.  142. 
1"  r.lake  V.  Williams,  G  Pick.  286. 
11  Lewis  V.  Latner,  72  Me.  487. 

^  Cowles  V.  Coe,  21  Conn.  220 ;  Kelly  v.  Lane,  42  Barb.  594  ;  Bibb  v.  Smith, 
1  Dana,  580. 

2  Dixon  V.  Hill,  5  Mich.  404  ;  Green  v.  Doughty,  6  IST.  H.  572. 

3  Lamb  v.  Stone,  11  Pick.  527  ;  Kessler  v.  St.  John,  22  Iowa,  565. 

<  Sullivan  v.  Langley,  124  Mass.  264  ;  Langley  v.  Berry,  14  N.  H  82- 


§  440  TRANSFER  PRIOR   TO   GARNISHMENT.  230 

to  show  whether  the  design  on  the  part  of  the  assignor  was  to 
cheat,  wrong,  defraud,  or  delay  his  creditors,  and  whether,  and 
to  what  extent,  the  assignee  endeavored  to  promote  such  design, 
would  be  deemed  pertinent  to  the  issue.^  But  the  question  is 
not  in  every  case  one  of  actual  fraud,  or  fraudulent  intent. 
The  transfer  may  be  held  fraudulent  for  the  reason  that  there 
has  been  no  change  of  possession,  or  for  any  other  cause  that 
fixes  upon  the  transaction  the  character  of  legal  fraud.^  But 
where  the  debtor  sold  property  which  was  then  put  up  at  auc- 
tion and  sold  for  the  purchasers,  the  fact  that  possession  had 
not  been  changed  prior  to  the  auction  sale  was  held  not  to 
avail  a  creditor  at  whose  suit  the  auctioneer  was  garnished 
when  the  sale  was  about  completed^  And  where  the  alleged 
assignee  is  not  before  the  Court,  either  by  virtue  of  process 
served  upon  him  for  that  purpose,  or  by  voluntary  appearance, 
the  question  whether  such  assignment  was  fraudulent  cannot 
be  adjudged  so  as  to  bind  him.^  And  when  the  question  arises 
between  conflicting  assignments,  it  cannot  be  properly  ad- 
judicated in  this  proceeding;  for  as  soon  as  it  appears  that 
either  assignment  was  valid,  the  garnishee  will  be  discharged, 
and  there  will  be  nothing  before  the  Court  to  try.  The  valid- 
ity of  the  assignment  is  only  in  question  to  determine  its  effect 
upon  the  rights  of  the  creditor  and  the  liability  of  the  garnishee 
respectively.^ 

§  440.  Rights  of  the  Parties  affected  by  prior  Mortgage  of 
Chattels  in  Garnishee's  Possession. — In  most  of  the  earlier 
cases  and  some  of  the  later,  the  Courts  hold  that  the  existence 
of  a  valid  mortgage  upon  chattels  is  sufficient  to  prevent 
its  being  subjected  to  the  payment  of  a  demand  against  the 
mortgagor,  whether  by  execution,  seizure  under  attachment, 
or  garnishment  of  the  party  in  possession.^  This  is  in  strict 
accordance  with  the  doctrine  that  a  mere  equity  of  redemption, 

5  Marsh  v.  Davis,  24  Vt.  363  ;  Patton  v.  Gates,  67  111.  164. 

G  Price  V.  Bradford,  4  La.  35. 

■^  National  Bank  etc.  v.  Slaley,  9  Mo.  App.  146. 

^  Supra,  §  433. 

s  Shattuck  v.  Smith,  16  Vt.  132  ;  Peet  v.  McDaniel,  27  La.  An.  455. 

1  Badlam  v.  Tucker,  1  Pick.  389  ;  11  Am.  Dec.  202  ;  Central  Bank  v.  Prentice, 
18  Pick.  396  ;  Andrews  v.  Ludlow,  5  Pick.  28  ;  Hudson  v.  Hunt,  5  N.  H.  538  j 
Holbrook  v.  Baker,  5  Me.  309 ;  17  Am.  Dec.  236. 


231  TRANSFER  PRIOR  TO   GARNISHMENT.  §   440 

which  is  all  the  interest  the  mortgagor  has  in  the  mortgaged 
chattels,  is  not  attachable.^  The  morfgagee  maj'  not  be,  and  gen- 
erally is  not,  in  possession  of  the  property  under  his  security 
prior  to  forfeiture,  and  it  is  this  state  of  things  to  which  ref- 
erence is  here  made.  When  the  party  holds  the  property  it- 
Self  as  security  for  his  debt,  his  rights  will  be  considered  as 
those  of  a  pledgee.  When,  therefore,  there  has  been  no  breach 
of  the  conditions  upon  which  the  mortgagor  was  to  continue 
in  possession,  the  mortgagee  is  under  no  obligation  to  take 
possession,  or  to  dispute  the  possession  of  a  third  party  who 
has  been  entrusted  with  the  mortgaged  goods.^  The  rights  of 
attaching  creditors  are  not  regarded  as  so  sacred  that  other 
rights  must  be  held  in  subordination  thereto.  The  mortgagee 
cannot,  in  order  to  facilitate  the  subjection  of  mortgagor's  in- 
terest to  the  payment  of  plaintiff's  demand,  be  compelled  to 
take  measures  for  the  foreclosure  of  his  security  not  called 
for  by  the  terms  of  his  contract.*  Under  ordinary  circum- 
stances, the  mortgagee  will  figure  in  the  controversy  as  inter- 
venor.  His  mortgage  does  not  render  him  subject  to  garnish- 
ment, unless  it  is  where  he  has  taken  possession  under  It.^ 
The  mortgagee's  lien  is,  for  the  most  part,  as  against  subsequent 
purchasers  and  creditors  secured  by  recording  the  mortgage, 
and  in  some  of  the  States  the  instrument  is  ineffectual  as  an 
Incumbrance,  unless  filed  for  record.  This,  however,  Is  not 
the  case  In  all  the  States.  It  Is  held  In  a  very  recent  case  In 
Minnesota,  that  recording  Is  not  necessary  to  give  the  mort- 
gagee rights  superior  to  those  of  the  attaching  creditor.*^  The 
circumstances  of  the  case  were  these :  A  creditor  endeavored 
to  reach  money  due  on  a  policy  of  insurance,  by  garnishment 
of  the  underwriter.  The  policy  was  made  payable  to  a  third 
party,  as  "  his  Interest "  should  appear  ;  and  on  his  coming  In  as 
claimant,  his  interest  appeared  to  be  that  of  mortgagee  of  the 

2  Haum  V.  Low,  2  N.  H.  13  ;  Sargent  v,  Carr,  12  Me.  396  ;  Callender  v.  Fur- 
bish, 40  Me.  22G  ;  Patterson  v.  Harland,  12  Ark.  158  ;  Lyle  v.  Barker,  5  Binn. 
457  i  Kergiu  v.  Dawson,  6  111.  86. 

3  Curtis  V.  Raymond,  29  Iowa,  52.  See  also  First  Nat'l  Baok  v.  Perry,  45 
Iowa,  266. 

*  Howard  v.  Carl,  6  Me.  3.53. 

6  Stedman  v.  Vickery,  42  Me.  132. 

•  Coykendall  v.  Ladd,  21  N.  W.  Reporter,  733. 


§   440  TRANSFER  PRIOR   TO   GARNISHMENT.  232 

chattels  insured,  but  tlie  mortgage  was  not  recorded.  It  was 
nevertheless  held  that,  thougli  never  filed  for  record,  such 
mortn'aire,  bcins;  valid  on  its  face  and  siven  in  good  faith,  was 
sufficient  to  uphold  the  right  of  the  claimant  to  tlie  insurance 
money,  to  the  amount  actually  due  on  the  policy  of  insurance.'^ 
But  the  creditor  may  attach  the  avails  of  the  policy  by  gar- 
nishment of  the  insurer,  and  contest  the  right  of  the  claimant 
upon  the  ground  that  the  mortgage  is  fraudulent  as  against 
ci'cditors.^  But  where  there  is  a  surplus  after  satisfaction  of 
the  mortixasre,  the  attachment  would  hold  it  in  the  hands  of 
the  garnishee,  as  may  be  clearly  inferred  from  the  language 
of  the  Court  in  Coykendall  v.  Ladd.®  It  is  also  held  in  a  re- 
cent case  in  Nebraska,  that  in  that  State  the  equity  of  re- 
demption in  mortgaged  chattels  was  such  an  interest  in  prop- 
erty as  was  subject  to  attachment  on  mesne  process,  and 
could  be  reached  by  garnishment  after  judgment,  in  aid  of  an 
execution. ^'^  When  after  foreclosure  there  is  a  surplus  in  the 
hands  of  the  mortgagee,  it  is,  of  course,  no  longer  affected  by 
the  Hen  of  the  prior  mortgage. ^^  The  mortgagee  will  be  held 
liable  as  gai-nishee,  precisely  as  any  other  depositary  or  trustee 
in  possession  of  property  or  funds  subject  to  the  direct  order 
of  the  defendant  in  attachment. ^^  In  no  case  can  a  mortsasre 
given  subsequent  to  the  service  of  garnishment,  obstruct  the 
creditor's  pursuit  of  the  property  so  incumbered  ;  and  this  ap- 
plies to  subsequent  advances  made  on  mortgages  executed  to 
secure  future  advances,  prior  to  garnisiunent.  The  question 
of  priority  between  the  mortgagee  and  the  attaching  creditor 
will  be  determined  by  the  dates  of  the  advances  which  the 
niort2:ao;e  is  relied  on  to  secure,  and  the  service  of  summons 

DO  ' 

in  garnishment.^^  Whatever  may  be  th%  modifications  of  the 
technical  objection  to  garnishment,  the  interest  of  the  debtor 
is  a  mere  equity  ;  there  is  no  substantial  change  of  the  rule 
that  the  rights  of  the  prior  mortgagee,  when  secured  accord- 

"  Coykendall  v.  Ladd  (Minn.),  21  N.  W.  Rep.,  733. 
8  North  Star  Boot  &  Shoe  Co.  v.  Ladd  (Minn.),  20  N.  W.  Rep.  334. 
0  21  N.  W.  Rep.  733. 
1"  Buruham  v.  Doolittle,  14  Neb.  214  ;  Legal  Advertiser,  July  17, 1883. 

11  Badlam  v.  Tucker,  1  Pick.  389  ;  11  Am.  Dec.  202. 

12  Barker  v.  Osborn,  71  Me.  GO. 

13  Bernard  v.  Moore,  8  Allen,  273. 


233  TRANSFER   PRIOR   TO    GARNISHMENT  §    441 

ing  to  law,  will  be  preserved,  whatever  be  the  form  of  pro- 
cedure in  which  the  mortgagor's  interest  is  authorized  to  be 
taken  by  his  creditors.  A  mortgagor  of  real  estate  committed 
waste  by  cutting  wood  from  the  mortgaged  premises  without 
consent  of  the  mortgagee,  and  afterwards  sold  the  wood  with 
the  mortgagee's  consent,  upon  condition  that  the  proceeds 
should  be  paid  to  the  mortgagee  and  applied  to  the  payment 
of  the  mortgage  debt.  The  wood  so  cut  was  held  to  be  the 
property  of  the  mortgagee,  and  hence  the  purchaser  could  not 
be  held  as  garnishee  of  the  mortgagor  from  whom  the  wood 
was  purchased,  for  the  reason  that  the  mortgagor,  in  selling, 
was  acting  as  the  agent  of  the  mortgage.^* 

§  441.  Pledgee  as  Garnishee. — When  the  property  of  the 
defendant  in  attachment  has  been  pledged  prior  to  garnish- 
ment, the  pledgor  has  an  interest  therein  which  may  be  reached 
by  garnishment  served  upon  the  pledgee.^  Where  a  surety  on 
an  injunction  bond  took  certain  chattels  of  the  principal  obli- 
gor as  indemnity  for  the  liability  assumed,  it  was  held  that  he 
would  be  liable  as  garnishee  in  an  action  against  his  principal, 
for  all  the  property  in  his  hands  beyond  what  was  necessary 
for  his  indemnity.^  In  Badlam  v.  Tucker^  however,  it  is  de- 
cided that  the  pledgor's  interest  cannot  be  reached  by  process 
of  this  kind,  for  the  reason  that,  there  being  no  agreement  that 
the  pawnee  should  sell  the  chattel  held  in  pledge,  he  could 
not  be  compelled  to  do  so  in  order  to  realize  the  amount  due 
from  the  pledgor.^  This  doctrine  is  followed  by  other  cases, 
as  fixing  and  defining  the  respective  rights  and  liabilities  of 
attaching  creditors  and  pledgees  and  mortgagees,  indiscrimin- 
ately.^ But  while  the  earlier  cases  have  proceeded  upon  the 
sound  principle  of  refusing  to  extend  by  implication  the  scope 
of  an  extraordinary  statutory  procedure  beyond  the  limits  pre- 
scribed by  ihe  statute  itself,  the  legishitures  have  not  failed  to 

1^  Cotta  V.  O'Neal,  58  N.  H.  572. 

1  Burnham  v.  Doolittle,  14  Neb.  214. 

2  Davis  V.  Wilson,  52  Iowa,  157;  Contra,  Yongue  v.  Linton,  6  Rich.  275. 
8  1  rick.  389;  11  Am.  Dec.  202. 

*  Hall  V.  Page,  4  Ga.  428;  Hudson  d.  Hunt,  5  N.  H.  538;  Howard  v.  Card,  6 
Me.  353. 
6  Supra,  §  438  (note). 


§  442  TEANSFEE  PEIOE  TO   GAENISHMENT.  234 

take  notice  of  the  inconvenience  likely  to  arise  from  incum- 
brances of  this  kind,  which  have  the  effect  of  placing  the 
property  of  a  debtor  beyond  the  reach  of  general  creditors, 
without  subjecting  it  to  the  payment  of  the  debt  secured.  Still, 
where  a  pledge  or  pawn  is  made  to  secure  a  honafide  debt,  the 
general  creditors  of  the  pledgor  will  not  be  permitted  to  use 
the  process  of  garnishment  to  impair  the  security,  or  otherwise 
imperil  the  rights  of  the  pledgee.^ 

A  recent  case  decided  by  the  Supreme  Court  of  Oregon,^ 
where  property  was  pledged  by  the  makers  of  certain  notes  to 
the  accommodation  indorser  for  his  indemnity,  it  was  held  that 
the  pledgor  had  an  interest  in  the  property  that  could  be 
reached  by  his  creditors  by  process  of  garnishment  served  on 
the  pledgee.^ 

§  442.  Other  Liens  to  wMch  the  Property  in  Possession 
of  the  Gramishee  may  be  subject. — The  liens  that  may  exist 
against  the  property  of  defendant  that  affect  the  liability  of 
the  garnishee,  may  be  in  favor  of  the  garnishee  or  any  one  else. 
When  they  are  of  the  former  class,  a  distinction  is  to  be  ob- 
served between  such  claims  as  give  him  a  lien  on  the  specific 
property,  and  such  as  may  more  properly  be  set  up  by  way  of 
set-off  or  counter-claim  to  a  debt  due  from  him  to  the  princi- 
pal defendant. 

Whether  the  claim  of  the  garnishee  against  defendant  may 
be  regarded  as  a  lien  upon  property  which  belongs  to  the  lat- 
ter, so  as  to  affect  the  liability  of  the  former,  may  be  deter- 
mined by  ascertaining  whether  it  may  be  held  without  the  de- 
fendant's consent  as  security  for  the  demand.  If  the  owner 
may  demand  a  return  of  the  property  without  satisfying  the 
claim  of  the  party  in  possession,  such  party  may  be  summoned 
as  garnishee,  at  the  suit  of  the  owner's  creditors,  and  cannot 
maintain  his  claim  against  the  owner  of  the  property  as  a  lien, 
and  have  it  satisfied  in  preference  to  that  of  the  attacliing 

eSmithv.  Clark,  9  la.  241;  Cammack  v.  Floyd,  10  La.  An.  351;  Kirkman  t>. 
Hamilton,  9  Martin,  297;  Nolan  v.  Crook,  5  Humph.  312;  Scofield  v.  Sanders, 
25  Vt.  181;  Whitney  v.  Dean,  5  N.  H.  249. 

7  Williams  v.  Gallick,  3  Pac.  Eep.  469. 

8  Citing  Burlingame  v.  Bell,  16  Mass.  318;  Hastings?;.  Baldwin,  17  Mass.  551; 
Sweet  V.  Brown,  5  Pick.  178;  Foster  v.  Potter,  37  Mo.  525;  Hearn  v.  Coutcher, 
4  Yerg.  461. 


235  TRANSFER  PRIOR   TO  GARNISHMENT.  §   442 

creditor.^  When  the  defendant  owes  the  garnishee  an  ordi- 
nary debt  arising  on  contract,  this  may  serve  the  latter  as  a 
defense  to  the  process  of  garnishment,  so  far  as  it  relates  to 
similar  claims  against  him  in  favor  of  the  principal  defendant ; 
but  not  when  he  is  summoned  in  reference  to  specific  proper- 
ty.^ A  different  rule  prevails  in  South  Carolina,  where  the 
garnishee,  when  summoned  in  respect  to  property  of  his  debtor, 
is  designated  as  "  a  creditor  in  possession,"  and  may  retain  such 
property  as  security  for  the  debt  due  him,  even  though  there 
is  no  contract  between  the  parties  that  he  may  do  so.^  This, 
however,  is  under  a  special  statute,  and  is  restricted  in  its  ap- 
plication to  cases  where  there  is  a  debt  existing  in  favor  of  the 
party  claiming  the  lien,  and  not  a  mere  contingent  liability,  as 
that  of  surety  or  the  like.* 

But  independent  of  the  statute,  when  the  garnishee  has  a 
definite  lien,  whether  legal  or  equitable,  arising  under  a  stat- 
ute or  at  common  law,  his  right  cannot  be  affected  by  the  ser- 
vice of  summons,  so  as  to  deprive  him  of  the  benefits  of  his 
security.^  If  the  garnishee's  relations  to  the  owner  of  the 
property  are  such  that  the  latter  cannot  take  the  property  out 
of  the  former's  possession  without  paying  the  debt,  this  consti- 
tutes a  lien,  and  no  other  creditor  of  the  owner  can  have  his 
debt  satisfied  from  the  property,  except  on  the  conciition  that 
the  claim  of  the  garnishee  is  satisfied  in  full.^  And  this  lien, 
unlike  the  statutory  one  in  South  Carolina,  does  not  depend 
upon  actual  indebtedness  from  the  owner  to  the  party  sum- 
moned as  garnishee.  Where  the  latter  has  on  the  faith  of 
property  consigned  to  his  care,  on  commission  or  otherwise,  as- 
sumed liabilities  for  the  consignor,  he  may,  when  summoned 
as  garnishee  at  the  suit  of  such  consignor's  creditors,  claim  a 
lien  upon  the  property  in  his  possession  for  his  indemnity, 
though  the  liabilities  assumed  are  for  debts  which  he  has  not 
yet  paid.'^ 

1  Allen  V.  Megguire,  15  Mass.  490  ;  Allen  v.  Hall,  5  Met.  (Mass.)  263 ;  BaUey 
V.  Ross,  20  N.  H.  302. 

2  Allen  V.  Megguire,  15  Mass.  490. 
«  Mitchell  V.  Byrne,  6  Rich.  171. 

*  Yongue  v.  Linton,  6  Rich.  275. 

fiKirkman  v.  Hamilton,  9  Martin,  297  ;  Smith  v.  Clarke,  9  Iowa,  241. 

« Nolan  V.  Crook,  5  Humph.  312;  Curtis  v.  Norris,  8  Pick.  280. 

'  Bank  y.  Levy,  1  McMuUen,  431 ;  Grant  v.  Shaw,  16  Mass.  341  i  8  Am.  Dec.  142. 


CHAPTER  XXXrV. 

CONTRACTS    BETWEEN   DEPENDANT   AND   GARNISHEE, 

§  443.    The  contract  to  deliver  property  to  the  owner. 

§  444.    Contracts  that  qualify  garnishee's  liability. 

§  445.    Contracts  by  which  garnishee's  liability  is  unaffected. 

§  443.  The  Contract  to  Deliver  Property  to  the'  Owner. — 
When  property  is  entrusted  by  the  owner  to  the  care  and  cus- 
tody of  another,  under  an  express  contract  on  the  part  of  the 
custodian  to  deliver  it  to  the  owner  on  demand,  the  relations 
of  the  parties  to  the  contract  stand  in  the  simplest  form  in 
which  they  are  capable  of  being  expressed,  so  as  to  make  the 
party  in  possession  liable  as  garnishee  in  an  action  against  the 
owner.  Other  contracts  may  have  the  effect  of  qualifying  the 
garnishee's  liability  ;  but  where  the  contract  is  in  substance  or 
effect  to  deliver  the  property  to  the  owner,  it  is  the  foundation 
of  such  liability.  Hence,  a  contract  to  restore  the  property  of 
the  owner  to  his  agent  is  no  defense  to  the  proceeding  by  gar- 
nishment, for  the  reason  that  it  is  the  same  in  effect  as  a  con- 
tract to  restore  it  to  the  possession  of  the  principal.'  It  is  the 
owner's  right  to  the  property  that  the  process  affects,  and  it  is 
of  no  consequence  how  that  right  is  to  be  ascertained.  It 
must  be  a  right  which  it  is  the  duty  of  the  garnishee  to  recog- 
nize, and  which  the  proprietor  might  enforce  against  him. 

§  444.  Contracts  that  Qualify  Garnishee's  Liability. — But 
there  are  contracts  in  relation  to  the  property,  which  can 
hardly  be  classed  as  liens,  which  may  so  affect  the  liability 
of  the  party  in  possession,  when  summoned  as  garnishee,  that 
he  cannot  be  held  charojable,  without  abridginsr  his  rio-hts  un- 
der  the  contract.  It  is  not  intended  that  the  statute  shall  have 
this  operation.  If  at  the  time  the  property  is  received,  or  at 
any  time  prior  to  service  of  summons  on  the  garnishee,  he  en- 

1  See  Adams  v.  Scott,  104  Mass.  164;  Collins  v.  Brigham,  11  N.  H.  420. 


237  CONTRACTS,   DEFENDANT   AND    GARNISHEE.         §   444 

ters  into  n  contract  in  relation  to  such  property,  with  the  own- 
er, by  which  the  latter's  right  to  reclaim  possession  or  control 
is  taken  away  or  subjected  to  any  new  conditions,  the  attaching 
creditor  cannot  disturb  the  relations  thus  established  to  the  in- 
jury of  the  garnishee.  The  property  can  only  be  taken  in  at- 
tachment subject  to  the  contracts  by  which  its  owner's  rights 
are  affected,  and  the  process  of  garnishment  can  effect  nothing 
more  than  to  subrogate  the  creditor  to  the  rights  of  his  debtor.^ 
An  example  of  this  is,  where  the  garnishee  purchased  goods 
under  a  contract  to  pay  for  them  by  satisfying  a  mortgage 
debt  due  by  the  seller,  and  having  the  mortgage  released. 
When  the  purchaser  was  summoned  as  garnishee,  it  was  held 
that  he  could  not  be  charged  as  such,  as  the  seller  could  not 
require  him  to  pay  the  purchase  price  of  the  goods  to  any  one 
else  than  the  mortgagee,  in  order  to  take  up  the  mortgage ; 
consequently  he  could  not  be  forced  to  vary  the  terms  of  hia 
contract  by  one  who  stood  in  the  seller's  shoes.^  A  similar 
case  was  where  one  to  whom  goods  were  delivered,  with  in- 
structions to  sell  and  apply  the  proceeds  to  the  payment  of 
debts  due  certain  creditors  of  the  consignor,  placed  them  in  the 
hands  of  the  creditors  designated,  with  this  understanding,  in 
whose  hands  they  were  attached  by  garnishment.  It  was 
held  that,  as  the  party  who  received  the  goods  and  deposited 
them  with  the  creditors  had  made  a  promise  to  pay  the  pro- 
ceeds to  such  creditors,  it  was  not  within  the  power  of  any 
other  creditor,  by  process  of  garnishment,  to  change  its  direc- 
tion.^ So,  where  the  consignee  of  goods,  upon  whom  a  bill  of 
exchange  had  been  drawn  by  the  consignor,  verbally  promised 
to  pay  the  same,  it  was  held  that  he  could  not  be  chai'ged  as 
garnishee  in  an  action  against  the  shipper,  as  that  would  de- 
prive him  of  his  lien  upon  the  goods,  in  case  he  observed  the 
terms  of  his  contract  with  the  holder  of  the  bill.*  When  prior 
to  the  receipt  of  any  specific  article  of  personal  property,  or 
any  sum  of  money,  the  party  in  anticipation  thereof  has   en- 

1  Baltimore  etc.  R.  Co.  v.  Wheeler,  18  Md.  372. 

2  Owen  V.  Estees,  5  Mass.  330.    See  Cutters  v.  Baker,  2  La  An.  572. 

8  Armor  v.  Cockburn,  4  Martin,  N.  S.  667;  Burnside  v.  McKinley,  12  La.  An. 
505. 

<  Grant  v.  Shaw,  16  Mass.  341;  Curtis  v.  Norris,  8  Pick.  280  ;  Ante,  §  440 ;  Cha. 
pin  V.  Jackson,  45  Ind.  153, 


§    444        CONTRACTS,   DEFENDANT   AND    GAENISHEE.  238 

tered  Into  a  contract  with  a  third  person  to  deliver  or  pay  over 
such  property  or  money,  he  is  not  released  from  the  obligation 
to  perform  his  agreement,  by  the  service  of  summons  in  gar- 
nishment after  the  property  or  money  comes  to  his  possession.^ 
And  even  where  his  agreement  is  with  the  defendant  in  attach- 
ment, from  whom  the  money  is  received  for  a  specific  purpose, 
as  to  enter  public  land  for  defendant,  and  in  pursuance  there- 
of he  has  taken  steps  towards  making  the  entry,  as  by  filing  a 
land  warrant  in  the  land  office,  he  cannot  be  prevented  from 
carrying  out  his  contract  by  process  of  garnishment  served 
upon  him  while  he  has  the  money  still  in  his  possession.^  This 
principle  applies  to  all  contracts  by  which  the  garnishee  has, 
either  prior  or  subsequent  to  garnishment,  received  money  or 
property  in  trust  from  defendant,  to  be  paid  out  to  others  to 
•whom  the  garnishee  is  bound  by  the  terms  of  his  contract.^ 
In  this  connection  the  garnishee's  exemption  may  be  rested 
upon  the  ground  that  he  holds  the  property  of  defendants  in  the 
capacity  of  trustee  of  an  express  trust,  and  to  require  him  to 
surrender  to  plaintiff  the  thing  entrusted  to  him,  would  be  to 
compel  him  to  violate  the  trust. ^  So,  where  the  contract  made 
by  the  garnishee  with  the  defendant,  or  with  a  third  person 
for  defendant's  benefit,  imposes  an  obligation  upon  the  gar- 
nishee, and  he  holds  the  property  in  question  for  his  indemnity, 
he  cannot  be  charged  without  destroying  the  lien  acquired  by 
him  upon  the  property  so  held.^  The  contract  to  deliver  prop- 
erty to  defendant  does  not  make  the  garnishee  the  defendant's 
debtor,  at  least  not  until  there  is  a  breach  of  contract.  If  gar- 
nishment would  lie  at  all  in  such  case,  prior  to  delivery,  it 
would  be  upon  the  ground  that  the  garnishee  had  defendant's 
property  in  possession.  And  this  could  hardly  be,  unless  the 
specific  articles  were  set  apart  from  the  garnishee's  other  prop- 
erty in  a  manner  to  make"  the  segregation  complete.  If  the  de- 
livery should  be  subject  to  certain  conditions  of  time  and  place, 
the  obligor  cannot  be  required  by  the  process  of  garnishment 

6Mahew  v.  Scott,  10  Pick.  54. 
6Lundie  v  Bradford,  26  Ala.  512, 
'  Collins  V.  Brigham,  11  N.  H.  420. 
^Ante,  §  428. 

^Anie,  §  442.    See  also  Dryden  v.  Adams,  29  Iowa,  195;  Ellis  v.  Goodnow,  40 
Vt.  237;  Faulkner  v.  Waters,  11  Pick.  473. 


239  CONTRACTS,   DEFENDANT   AND    GARNISHEE.  §   445 

to  deliver  them  elsewhere,  or  at  a  different  time,  particularly 
when  the  property  is  not  to  belong  to  the  defendant  until  so 
delivered.^''  It  was  accordingly  held  in  Illinois,  that  a  railroad 
having  possession  of  property  which  it  was  transporting,  could 
not  be  held  as  garnishee  in  respect  thereto,  as  it  was  bound  by 
its  contract  to  deliver  the  property  only  at  the  place  of  its 
destination,  and  the  jiroperty  was  not,  when  the  garnishee  was 
served,  in  the  county  where  the  writ  issued. ^^  But  in  Massa- 
chusetts it  was  held,  that  an  express  company  having  money 
of  the  defendant  in  its  possession  in  the  State,  could  be  charged 
as  garnishee,  though  the  money  was  to  be  delivered  in  Con- 
necticut.^^ 

§  445.  Contracts  by  which  Garnishee's  Liability  is  Unaf- 
fected.— The  most  important  essential  to  a  contract  in  relation 
to  property  in  the  hands  of  garnishee  is,  that  it  shall  be  a  le- 
gal contract — one  which  it  is  not  against  the  policy  of  the  law 
to  enforce.  Consequently,  where  money  is  in  the  hands  of  a 
stakeholder  between  parties  to  a  wager,  under  a  contract  to 
pay  it  to  the  winning  party,  he  may  in  general  be  held  as  gar- 
nishee of  either,  notwithstanding  his  contract  to  hold  the  mon- 
ey to  abide  the  event,^  though  if  the  money  has  been  paid  to 
the  winner,  the  stakeholder  cannot  be  held  as  garnishee  in  an 
action  against  the  loser.^  In  one  case,  at  least,  it  has  been  held 
that  the  money  could  not  be  taken  from  the  possession  of  the 
stakeholder  without  the  consent  of  the  debtor,  unless  the  lat- 
ter was  insolvent.^ 

The  contract,  to  affect  the  garnishee's  liability,  must  be  one 
to  which  he  is  a  party,  unless  it  amounts  to  an  assignment  or 
incumbrance  of  the  property.^  It  is  not  sufficient  that  a  con- 
tract has  been  entered  into  between  plaintiff  and  defendant,  as 
to  the  manner  in  which  the  funds  are  to  be  disposed  of  after 
the  recovery  of  judgment,  as  the  garnishee  will  not  be  dis- 

10  Clark  v.  Brewer,  6  Gray,  320. 
"Illinois  Cent.  R.  Co.  v.  Cobb,  48111.  402. 
12  Adams  v.  Scott,  104  Mass.  164. 

iBall  V.  Gilbert,  12  Mete.  397;  Reynolds  V.  McKinney.  4  Kas.  94.  See  Wi- 
mer  v.  Pritchartt,  IG  Mo.  252. 

2  Seise  v.  McCoy,  G  Watts  &  S.  485. 

8 Clark  V.  Gibson,  12  N.  H.  386. 

*Ante,  Ch.  XXXm. 


§   445        CONTRACTS,   DEFENDANT   AND    GARNISHEE.  240 

charged  by  paying  the  money  according  to  such  agreement 
prior  to  judgment.^ 

Where  goods  are  received  by  a  warehouseman  who  has  giv- 
en a  receipt  therefor,  if  there  is  an  assignment,  by  transfer  of 
the  receipt  prior  to  service  of  summons  on  the  garnishee,  he 
will  become  liable  for  the  goods  to  the  assignee.^  But  the 
warehouse  receipt  is  held  not  to  be  negotiable,  and  hence  the 
fact  that  it  is  outstanding,  and  subject  to  transfer,  will  not 
qualify  the  garnishee's  liability,  when  summoned  at  the  suit  of 
the  creditor  of  the  owner  from  whom  the  goods  were  received. 
And  if  the  garnishee  delivers  the  goods  to  one  to  whom  the 
receipt  has  been  transferred  subsequent  to  service,  he  will  be 
held  liable  to  the  plaintiff  in  attachment  for  their  value,  or  the 
amount  of  the  judgment  recovered  against  the  principal  de- 
fendant.'^ 

6  Webster  v.  Randall,  19  Pick,  13, 

^Ante,  §  437, 

■?  Smith  V.  Picket,  7  Ga.  104  ;  50  Am.  Dec.  38S. 


CHAPTER  XXXV. 

garnishee's  liability  as  a  debtor. 

§  446.  General  remarks. 

§  447.  Nature  of  defendant's  demand  ag  :inst  garnishee. 

§  448.  A  legal  debt. 

§  449.  The  debt  should  not  be  subject  to  contingencies. 

§  450.  Contingencies  by  which  garnishee's  liability  is  unaffected. 

§  451.  Conditional  obligation  as  a  foundation  for  garnishment. 

§  452.  A  debt  iiayable  in  money. 

§  453.  Consideration  of  the  debt — Contracts  of  Indemnity. 

§  454.  Capacity  in  which  the  debt  is  contracted — IMunicipal  corporations  and 

public  officers. 

§  455.  Same— Executors  and  administrators. 

§  456.  Debts  contracted  in  a  private  representative  capacity. 

§  457.  The  jjlaintiff  as  garnishee. 

§  446.  General  Remarks. — For  several  chapters  hitherto^ 
we  have  confined  our  inquiries  almost  exclusively  to  that 
branch  of  the  subject  which  considered  the  liability  of  the  gar- 
nishee on  account  of  his  possession  of  specific  chattels  which 
were  the  property  of  the  principal  defendant.  We  come  now 
to  the  question  of  his  liability  arising  from  indebtedness  to  de- 
fendant, and  shall  find  many  of  the  principles  that  govern  this 
peculiar  process  applicable  alike  to  both  the  general  classes 
into  which  the  subject  is  divided.  In  both,  plaintiff's  cause 
of  action  against  defendant  must  be  one  upon  which  attach- 
ment will  lie.  The  same  rules  as  to  parties  will  govern. 
Where  one  cannot  be  held  as  garnishee  in  respect  to  property 
held  by  him  in  a  particular  capacity,  he  cannot  be  held  because 
of  an  obligation  to  pay  money  in  the  same  capacity.  Public 
corporations  stand  upon  the  same  ground  of  exemption  from 
garnishment  in  the  one  case  as  in  the  other.  The  general 
Government,  and  the  individual  States  of  which  it  is  composed, 
are  not  garnishable  as  debtors,  for  the  same  reasons  that  they 
cannot  be  garnished  in  respect  to  specific  property  of  the  priu- 

^  Ante,  Ch.'K.X:K,.et  seq. 
II.  Attach.— 16. 


§  446        garnishee's  liability  as  a  debtop..  242 

cipal  defendant,  which  they  may  have  in  possession  or  under 
their  control.  The  liability  of  the  garnishee  is  affected  in  the 
same  manner,  and  to  the  same  extent,  by  the  assignment  of 
defendant's  demand  against  him,  as  by  the  transfer  of  defen- 
dant's interest  in  the  property  in  his  possession.  In  many 
other  respects,  some  of  wiiich  have  been  incidentally  noticed, 
when  we  had  under  consideration  the  subject  of  specific  prop- 
erty, the  two  classes  of  cases  which  arise  are  governed  by  the 
same  general  rules. 

And  yet  there  are  some  particular  rules  that  do  not  apply 
to  both.  Thus,  the  property  in  garnishee's  possession  may  be 
subject  to  liens,  while  the  debt  is  held  subject  to  set-off  or 
counter-claim.  As  we  have  seen,  the  party  in  possession  of 
defendant's  property,  upon  which  he  has  no  lien,  may  be 
charged  as  garnishee  in  respect  thereto,  even  though  the  de- 
fendant Is  indebted  to  him  to  the  full  value  of  such  property.^ 
So  the  rule  as  to  the  necessity  of  notice  to  the  party  in  posses- 
sion of  property,  of  its  transfer,  is  probably  not  so  general  as 
that  which  requires  notice  to  effect  an  assignment  of  a  debt. 
In  case  of  a  debt,  it  will  be  oftener  held  that  notice  of  the  as- 
signment must  come  prior  to  garnishment,  than  in  case  of  spe- 
cific chattels.  The  element  of  negotiability  also  enters  Into 
debts,  so  that  It  may  be  beyond  the  power  of  the  garnishee  to 
say  to  whom  he  Is  Indebted  when  summoned,  and  the  evi- 
dence of  his  liability  may  change  hands  repeatedly  after  he 
has  been  required  to  answer  the  process,  and  each  new  cred- 
itor will  be  unaffected  by  the  proceeding  against  the  garnishee. 
Specific  property  In  garnishee's  possession  Is  never  subject  to  this 
uncertainty.  If  owned  by  the  principal  defendant  when  service 
is  had  on  the  garnishee,  no  subsequent  transfers,  howsoever  in- 
nocently they  may  be  made  or  accepted,  will  disturb  the  rights 
of  the  plaintiff  to  hold  the  garnishee.  In  case  judgment  Is  ob- 
tained atjalnst  the  defendant.  But  there  is  nothino;  so  essen- 
tially  different  In  these  two  convenient  subdivisions  of  the  law 
of  attachment,  that  both  Indebtedness  and  specific  property 
may  not  be  reached  by  the  same  process.  It  may  even  be,  to 
some  extent,  uncertain  whether  the  garnishee  when  sum- 
moned Is  liable  as  a  debtor  of  the  defendant,  or  as  having  de- 

2  Ante,  §  375. 


243  GARNISHEE'S    LIABILITY   AS   A   DEBTOR  §   447 

fendant's  property  in  possession,  and  yet  he  may  be  held  if  it 
be  established  that  he  is  one  or  the  other.^ 

§  447.  Nature  of  Defendant's  Demand  against  Garnishee. 
— The  parties  indicated  by  the  general  language  of  the  statute 
as  liable  to  garnishment,  are  those  having  in  their  possession  or 
under  their  control  personal  property,  credits  or  effects,  or 
those  who  are  indebted  to  the  principal  defendant.  The  nature 
of  defendant's  demand  against  the  garnishee  must  be  a  dehU 
and  in  general  it  is  understood  to  mean  indebtedness  according 
to  the  technical  rather  than  the  popular  understanding  of  the 
tei'm.  It  must  be  a  demand  of  the  class  for  which  attachment 
would  lie  in  a  direct  proceeding.^  Where  a  railroad  corpora- 
tion had  taken  defendant's  property  for  which  no  compensation 
was  paid,  there  was  unquestionably  a  right  of  action,  and  in 
common  parlance,  the  corporation  might  be  said  to  be  indebt- 
ed to  the  party  whose  property  was  thus  taken,  in  an  amount 
equal  to  the  value  thereof.  Nevertheless,  it  was  decided  that 
the  company  could  not  be  charged  as  garnishee,  in  an  action 
against  the  owner  of  such  a  claim.  And  after  the  company 
had  been  so  summoned,  the  principal  defendant  recovered  judg- 
ment against  it  for  the  value  of  the  property  taken,  to  the  use 
of  a  prior  transferee  of  the  claim ;  and  it  was  held  that  the 
transferee  was  entitled  to  the  fund  which  had  been  paid  into 
Court,  in  preference  to  the  plaintiff  in  attachment,  for  the  rea- 
son that  the  demand  was  unliquidated  when  the  garnishee  was 
summoned.^  When  the  claim  of  the  defendant  is  an  unliqui- 
dated demand,  in  the  sense  that  it  can  only  be  reduced  to  a 
definite  amount  by  judgment,  it  is  generally  held  that  it  is  not 
such  a  demand  as  comes  within  the  general  meaning  of  the 
term  debt.^  Thus,  in  the  case  of  Hugg  v.  Booth,*  where  the 
party  served  had  entered  into  a  contract  with  the  principal  de- 
fendant to  sell  goods,  for  which  he  would  accept  in  payment 

8  Smith  V.  Cahoon,  37  Me.  281;  Ante,  §  326. 

iGetcliell  V.  Chase,  37  N.  H.  106  ;  Baker  v.  Eslay,  19  Vt.  131  ;  Deaver  v. 
Keith,  5  Ired.  374  ;  Eddy  v.  Heath,  31  Mo.  141 ;  Fish  u.  Field,  19  Vt.  141 ;  Rich- 
ardson V.  Wliitney,  18  Pick.  530. 

2  Selheimer  v.  Elder,  08  Pa.  St.  154.    See  Fellows  v.  Duncan,  13  Met.  332. 

8  Hugg  V.  Booth,  2  Ired.  282  ;  Paindlet  v.  Jordan,  3  Me.  47;  Deaver  v.  Keith, 
5  Ired.  374  ;  McKean  v.  Turner,  45  IST.  H.  203  ;  Foster  u.  Dudley,  30  N.  H.  4G3. 

<2  Ired.  282. 


§  447        garnishee's  liability  as  a  debtor.  244 

the  notes  of  a  third  party,  and  on  such  notes  being  presented, 
refused  to  comply  with  the  terms  of  his  agreement,  the  Court 
hekl  that  in  a  suit  by  attachment  against  the  party  coraphxin- 
ing  of  tlie  breach  of  contract,  the  other  party  thereto  could 
not  be  held  as  garnishee.^  But  although  a  claim  for  unliqui- 
dated damages  cannot  be  reached  by  garnishment,  it  is  held 
that  if  the  damages  claimed  are  liquidated,  and  a  sjjecific  sum 
agreed  upon  before  the  garnishee's  deposition  is  taken,  he  may 
be  charged  as  having  that  amount  of  money  in  his  hands  at 
the  time  of  taking  his  deposition.^ 

Where  the  claim  for  damages  against  the  garnishee  is  for  a 
mere  tort,  it  is  not  generally  regarded  as  a  debt  for  which  the 
tort  feasor  may  be  required  to  answer  in  garnishment  at  the 
suit  of  the  injured  party's  creditor.'^  Where  the  garnishee,  as 
creditor  of  the  principal  defendant,  has  recovered  usurious  in- 
terest, where  an  action  would  lie  to  recover  it  back,  the  usurer 
cannot  be  held  as  garnishee,  in  an  action  against  the  party  by 
whom  it  was  paid.^  The  payment  of  such  usury  does  not  es- 
tablish a  credit  in  favor  of  the  party  paying  it,  within  the  gen- 
eral meaning  of  the  statute  that  authorizes  the  summons  as 
garnishees  of  parties  holding  credits  of  the  attachment  defend- 
ant.^ Nor  can  judgment  against  garnishee  be  based  upon  a  liabil- 
ity to  defendant  for  wrongfully  suing  out  attachment,  until  such 
claim  for  damages  is  reduced  to  a  judgment.^*'  Nor  upon  liability 
of  the  sui'eties  on  an  official  bond  for  the  ofl5cer's  breach  of 
duty;^'^  nor  upon  the  garnishee's  breach  of  duty  as  an  offi- 
cer.^^ 

The  most  general  statement  of  the  conditions  upon  which  a 
party  may  be  summoned  as  garnishee  is,  that  it  must  be  one 

5  See  also  Eand  v.  White  Mt.  R.  R. ,  40  X.  H.  79  ;  Leaf e  v.  "Walker,  18  La.  1. 

6  Gove  ).'.  Varrell,  58  N.  H.  78. 

"  Lomerson  v.  Huffman,  25  X.  J.  L.  625  ;  Rundlet  v.  Jordan,  3  Me.  47;  Foster 
V.  Dudley,  30  N.  H.  463  ;  Despatch  Line  v.  Bellamy,  ManfgCo.,  12  N.  H.  205: 
37  Am.  Dec.  203;  Paul  v.  Paul,  10  K  H.  117;  Pert  i'.  McDaniel,  27  La.  An. 
455  ;  Detroit  P.  &  T.  Co.  v.  Reilly,  46  Mich.  459  ;  Hill  v.  Bowman,  35  Mich.  191; 
Graham  v.  Moore,  7  B.  Men.  53  ;  Thayer  v.  Southwick,  8  Gray,  229. 

8  Boardman  v.  Roe,  13  Mass.  104  ;  Barker  v.  Esty,  19  Vt.  131 ;  Ransom  v. 
Hays,  39  Mo.  445  ;  Graham  v.  Moore,  7  B.  Mon.  53. 

9  Graham  r.  Moore,  7  B.  Mon.  53  ;  Fish  v.  Field,  19  Vt.  141. 
10  Pert  V.  McDaniel,  27  La.  An.  455. 

^Eddy  V.  Heath's  Garnishees,  31  Mo.  141 ;  Thayer  t;.  Southwick,  8  Gray,  229. 
2-Hemmenway  v.  Pratt,  23  Vt.  332. 


245  garnishee's  liability  as  a  debtor.         §  4i7 

against  whom  the  principal  defendant  has  a  cause  of  action. ^^ 
It  is  the  ability  of  the  plaintiff,  who,  as  against  garnishee, 
represents  the  principal  defendant,  to  establish  the  hitter's 
claim  against  the  garnishee,  that  gives  the  plaintiff  his  right 
to  a  judgment  against  the  garnishee,  whether  such  claim  be 
for  specific  property  or  ci'edits  in  defendant's  favor. ^*  But 
this  statement,  as  is  shown  by  the  foregoing  examples,  is  too 
general  to  properly  define  the  operation  of  the  statute,  where 
the  garnishee  is  interrogated  as  to  the  matter  of  indebted- 
ness. A  party  may  have  a  cause  of  action  against  a  municipal 
corporation  for  an  award  in  his  favor ;  but  it  is  held  that  the 
municipal  corporation  cannot  be  held  as  a  debtor  of  the  party 
holding  the  claim,  leaving  out  of  consideration  the  question  of 
public  policy. ^'^  So  where  one  gave  a  title-bond  of  property 
which  he  did  not  own,  for  which  he  received  the  consideration, 
he  could  not  be  held  as  garnishee  of  the  obligee  in  the  bond, 
for  the  reason  that  the  time  for  fulfillment  of  the  terms  of  the 
bond  had  not  expired,  and  if  they  had,  the  obligee  might  pre- 
fer to  sue  the  obligor  for  damages,  and  not  receive  back  the 
consideration.^^  To  establish  the  relation  of  debtor  and  cred- 
itor, the  consent  of  the  creditor  is  necessary.^''  The  fact  that 
one's  title  to  land  depends  upon  his  paying  off  a  mortgage  on 
the  same,  does  not  make  him  the  debtor  of  the  mortgagee.  A 
sale  of  goods  for  cash  on  delivery  creates  no  debt,  for  the  rea- 
son that  no  credit  is  given. -^^  Unless  the  goods  are  paid  for 
when  delivered,  they  may  be  reclaimed  at  once.  For  this  rea- 
son a  purchaser  on  these  terms  cannot  be  held  as  garnishee 
by  the  service  of  summons,  when  he  is  in  the  act  of  making 

13  Lewis  V.  Smith,  2  Cranch  C.  C.  571;  Hall  v.  Magee,  27  Ala.  414;  Patton  v. 
Smith,  7  Ired.  438;  White  v.  Jenkins,  16  Mass.  62;  Haven  v.  "Wentworth,  2  N. 
H.  93;  Piper  v.  Piper,  2  N.  H.  439;  Walke  v.  McGehee,  11  Ala.  273  ;  Cook  v. 
Walthall,  20  Ala.  334;  Cobb  v.  Bishop,  27  Vt.  624;  Victor  v.  Hartford  Ins.  Co., 
33  Iowa,  210;  Wood  v.  Partridge,  11  Mass.  488;  Morey  v.  Sheltus,  47  Vt.  342. 

n  Maine  F.  &  M.  Ins.  Co.  v.  Weeks,  7  Mass.  438;  Brigden  v.  Gill,  16  Mass. 
522;  Adams  r.  Barrett,  2  N.  H.  374;  McGehee  v.  Walke,  15  Ala.  183  ;  Lundie 
f.  Bradford,  26  Ala.  512 ;  Kittle  v.  Harvey,  21  Vt.  301;  Harrell  v.  Whitman, 
19  Ala.  1.35;  Greenleaf  /;.  Perrin.  8  N.  H.  273;  Nesbitt  v.  Ware,  30  Ala.  68;  Pow- 
ell V.  Sammous,  31  Ala.  552;  Smith  v.  Cahoon,  37  Me.  281. 

li  Ftdlows  V.  Duncan,  13  Met.  (Mass.)  332.    See  Geer  v.  Chapel,  11  Gray,  18, 

18  Grace  i-.  Masfield,  0  Humph.  328. 

1"  Turner  v.  Armstrong.  9  Yerg.  412. 

18  Wentworth  v.  Whittemore,  1  Mass.  471. 


§  448        garnishee's  liability  as  a  debtor.  246 

payment.^^  It  is  held  upon  very  plausible  reasoning  that  al- 
thougli  a  i:»arty  having  a  right  of  action  against  another  for  a 
tortious  act,  may  waive  the  tort  and  sue  in  assumpsit,  and 
have  attachment  in  aid  of  his  suit,  the  same  cannot  be  done  by 
the  creditors  of  the  party  who  has  suffered  the  wrong.  The 
waiver  of  the  wrong  is  the  privilege  of  the  party  who  suffered 
it,  and  cannot  be  rendered  available  to  his  creditors  by  process 
of  garnishment.^*' 

§  448.  A  Legal  Debt. — Not  only  must  the  demand  in  favor 
of  the  principal  defendant  be  a  debt  owing  from  garnishee,  but 
it  must,  except  where  the  statute  otherwise  provides,  be  a  le- 
gal debt.  It  must  be  a  cause  of  action  in  favor  of  the  princi- 
pal defendant  and  against  the  garnishee,  upon  which  the  for- 
mer could  at  common  law  maintain  an  action  of  debt  or  indehi- 
tatus  assumpsit.^  This  excludes  mere  equitable  demands. 
Hence,  where  a  judgment  was  recovered  against  the  party 
summoned,  to  the  use  of  the  principal  defendant,  in  an  action 
brought  in  the  name  of  another  party,  it  was  held  that  the 
judgment  debtor  could  not  be  charged  as  garnishee  in  an  ac- 
tion against  the  party  for  whose  use  the  action  was  brought.^ 
And  for  the  same  reason  a  demand  arising  out  of  unsettled 
partnership  accounts  between  the  principal  defendant  and  the 
fifarnishee  will  not  serve  as  the  foundation  of  the  latter's  liabil- 
ity.^  In  proceedings  of  this  kind,  the  Court  will  not,  unless 
the  statute  specially  authorizes  it,  undertake  to  settle  equities 
between  the  principal  defendant  and  the  garnishee.*  The 
claim  should  be  one  which  the  defendant  could  jiursue  against 
his  debtor  at  law,  and  in  his  own  name.^  But  this  does  not 
prevent   the  plaintiff,  when  the  principal  debtors   constitute 

19  Paul  V.  Reed,  52  N.  H.  136. 
2«  Lewis  V.  Dubose,  29  Ala.  219. 

1  Hassie  v.  God  Is  With  Us  Congregation,  35  Cal.  378  ;  Nesbit  v.  Ware,  30 
Ala.  68  ;  Williams  v.  Gage,  49  Miss.  777  ;  Caldwell  v.  Coates,  78  Pa.  St.  312  ; 
Webster  v.  Steele,  75  111.  5M  ;  Bills  v.  National  Park  Bank,  47  N.  Y.  Sup'r  Ct. 
302. 

2  Webster  v.  Steele,  75  111.  644. 

3  Ives  V.  Vanscoyoc,  81  111.  120. 

4  Harrell  v.  Whitman,  19  Ala.  135  ;  May  v.  Baker,  15  111.  89. 

s  Hoyt  V.  Swift,  13  Vt.  129  ;  37  Am.  Dec.  686.  Unpaid  assessments  on  shares 
of  stock  is  such  a  debt,  and  the  corporation  may  be  summoned  as  garnishee  of  the 
stockholder.— FauU  v.  Alaska  etc.  Co.,  8  Saw.  420  ;  14  Fed.  Eep.  657. 


247  gaknishee's  liabiljty  as  a  debtor.  §  419 

a  copartnership,  from  attaching  money  in  tlie  hands  of  a  party 
who  has  received  it  from  a  member  of  the  firm  for  liis  individ- 
dual  indebtedness,  he  knowing  it  to  be  the  money  of  the  firm, 
and  its  payment  to  be  in  fraud  of  the  firm  creditors.^ 

It  must  also  be  a  legal  debt,  in  the  sense  that  no  law  is  vio- 
lated in  contracting  it :  as  a  gambling  debt,  or  the  sale  of  in- 
toxicating liquors  where  such  traffic  is  prohibited.' 

§  449.  A  Debt  not  Subject  to  Contingencies. — Before  a 
party  summoned  can  be  charged  as  garnishee  on  account  of 
indebtedness  to  the  principal  defendant,  it  must  appear  that 
such  indebtedness  was  absolute,  and  depending  upon  no  future 
contingencies.^  If  the  contract  be  of  such  a  nature  that  it  is 
uncertain  whether  defendant  will  ever  have  a  claim  against 
the  garnishee,  it  presents  the  strongest  possib?e  reason  for  the 
objection  to  holding  the  garnishee  liable  to  defendant's  credi- 
tor, on  the  ground  of  extreme  uncertainty.^  Even  the  most 
liberal  statutory  provisions,  intended  to  extend  the  scope  of 
the  proceeding  so  as  to  embrace  debts  that  may  fairly  be  re- 
garded as  to  some  extent  contingent,  would  not  cover  demands 
that  may  never  come  into  existence.  Accordingly,  where  a 
building  was  to  be  completed  under  contract  by  a  specified 
time,  and  ten  per  cent,  of  the  contract  price  was  to  be  with- 
held until  its  completion,  and  forfeited  in  the  event  of  a  failure 
to  complete  the  building  within  the  period  contracted  for,  it 
was  held  that  this  ten  per  cent,  was  not  a  debt  owing  to  the 
builder,  and  it  could  not  in  any  view  of  the  case  be  reached 
by  garnishment  served  on  the  party  who  held  it,  prior  to  the 
completion  of  the  building.^  So  a  contract  between  a  ship 
owner  and  the  shipper  of  a  cargo,  that  the  former  should  re- 
ceive a  share  of  the  profits  of  the  cargo,  was  held  not  to  cre- 
ate a  debt  until  the  completion  of  the  voyage  and  the  realiza- 
tion of  the  profits,  as  until  then  it  would  be  uncertain  whether 

'.Tolmson  v.  Hersey,  73  Me.  291. 

7  McGlinchy  v.  Winchell.  63  Me.  31. 

1  Roberts  r.  Drinkard,  3  Met.  (Ky.)  309  ;  Bishop  v.  Young,  17  Wis.  46  ;  Mad- 
uel  V.  Mousseaux,  29  La.  An.  228  ;  Bills  v.  National  Park  Bank,  47  N.  Y.  Sup'r 
Ct.  362  ;  Baltimore  etc.  R.  Co.  v.  McCullougli,  12  Gratt.  595. 

2  See  Russell  v.  Clingan,  33  Miss.  535  ;  Wood  v.  Bixton,  108  Mass.  102. 

8  Webber  v.  Bolte,  (Mich.)  Rep.,  Oct.  24, 1883. 


§  449        garnishee's  liability  as  a  debtor.  248 

the  sliipowner  was  entitled  to  anything.^  So,  also,  wliere  by 
contract  between  a  street  railway  corporation  and  a  conductor, 
the 'latter  was  to  account  for  tickets  entrusted  to  him  in  settle- 
n)ent  of  his  wages,  and  at  the  time  of  service  of  the  writ  upon 
the  corporation  he  had  in  his  hands  money  received  from  the 
sale  of  tickets,  which,  together  with  the  tickets  still  in  his  pos- 
session, exceeded  the  amount  of  his  wages  then  earned.  It  was 
held  that  there  was  nothing  due  him  from  the  corporation 
"  absolutely  and  without  any  contingency,"  within  the  mean- 
ing of  the  statute,  so  that  the  company  could  be  charged  as 
garnishee.^  The  wages  of  a  sailor,  payable  on  arrival  In  port, 
are  held  to  create  only  a  c  ontingent  debt,  and  hence  the  party 
by  whom  the  same  are  payable  cannot  be  garnished  at  the  suit 
of  the  sailor's  creditors,  while  the  ship  on  which  he  Is  employed 
is  still  at  sea.^  'And  where  one  was  summoned  as  garnishee  of 
a  builder,  whose  contract  required  him  to  cojiiplete  the  build- 
ing on  which  he  was  engaged  by  a  certain  day,  a)ul  for  fail- 
ure was  to  forfeit  a  certain  sum  per  day  for  evei'y  day  it  re- 
mained unfinished  after  the  time,  and  the  day  was  passed 
leaving  the  work  unfinished,  by  reason  of  which  it  did  not 
appear  whether  any  sum  whatever  would  be  due  on  the  con- 
tract when  the  building  was  completed.  It  was  held  that  the 
garnishee  could  not  be  charged.'  This,  it  will  be  noticed,  does 
not  turn  uj)on  a  question  of  uncertainty  as  to  the  time  when 
the  sum  will  be  due,  or  uncertainty  of  amount.  The  Indebt- 
edness must  exist  absolutely  at  the  time  of  service,  subject  only 
to  the  lapse  of  time,  or  to  be  extinguished  by  payment.  One 
who  received  a  bill  of  exchange  for  which  he  promised  to  ac- 
count to  the  defendant  when  the  bill  was  paid,  was  held  not 
charoable  as  sjarnishee,  while  It  remained  uncertain  whether 
the  bill  would  ever  be  pald.*^  Where  one  has  In  any  manner  or 
form  contracted  for  a  share  of  the  net  proceeds  or  profits  of 
a  commercial  or  trading  venture  of  any  sort,  and  the  party  sum- 

1  Davis  r.  Ham,  3  Mass.  33  ;  Cutter  v.  Perkins,  47  Me.  557;  Leefe  v.  Walker, 
18  La.  1. 

5  Fellows  V.  Smith,  131  Mass.  363. 

6  Wentwortb  v.  Wbittemore,  1  Mass.  471  ;  Taber  v.  Nye,  12  Pick.  105. 

"  Hoiison  v.  Dinan,  48  Mich.  612.   See  Hancock  v.  Colyer,  99  Mass.  187;  Bish- 
op r.  Young,  17  Wis.  46. 
8  Erothingham  );.  Haley,  3  Mass.  63. 


249  garnishee's  liability  as  a  debtor.         §  449 

moned  as  garnishee  has  in  his  hands  the  goods  dealt  in,  with 
the  cash  proceeds  of  so  much  as  have  been  sold,  and  it  still  re- 
mains uncertain  whether  there  will  be  profits  to  divide,  there 
is  no  indebtedness,  under  the  rule  against  contingent  demands, 
which  will  serve  as  a  sufficient  foundation  for  process  of  gar- 
nishment.^ One  cannot  be  held  as  debtor  or  custodian  of  spe- 
cific chattels,  in  anticipation  of  his  becoming  a  debtor  or  re- 
ceiving the  property,  so  long  as  the  happening  of  the  event  is 
contingent.^''  A  tenant  whose  rent  Is  payable  quarterly,  when 
summoned  as  garnishee,  cannot  be  held  except  for  the  quarter 
for  which  the  rent  is  actually  due,  that  for  the  future  being 
i-egarded  as  contingent  and  uncertain. ^i  Upon  the  game  prin- 
ciple, a  contract  to  pay  a  certain  sum  of  money  at  stated  times 
during  the  life  of  the  promisee  does  not  create  a  deht,  except 
as  to  sums  due,  as  this  is  one  of  the  instances  in  which  notliing 
is  owing  until  it  is  due^-under  the  terms  of  the  contract.  The 
element  of  uncertainty  is  in  respect  to  the  promisee  living  until 
the  time  when  he  will  become  entitled  to  a  payment  under  his 
contract.^^  Where,  however,  the  annuitant  is  entitled  to  pay- 
ment for  any  portion  of  a  year  for  which  he  may  have  lived, 
whether  the  same  is  due  at  once  or  at  the  end  of  the  year,  the 
indebtedness  would  be  considered  absolute  within  the  meaning 
of  the  statute. ^^  Contracts  of  insurance,  where  the  insurer  re- 
serves the  right  to  pay  the  amount  of  the  loss  or  replace  the 
building,  are  held  to  be  contingent  for  the  time  that  the  insur- 
er has  the  right  to  elect  whether  to  pay  cash  or  i-estore  the 
property. ^^  Contracts  of  guaranty  are  also  classed  as  collat- 
eral and  uncertain.'^  So  where  a  note  or  other  form  of  writ- 
ten obligation  to  pay  if  some  event  should  transpire  in  the  fu- 
ture, in  whatever  form  of   words  the  contingency  is  express- 

9  Williams  v.  Marston,  3  Pick.  65  ;  Willard  v.  Sheaf e,  4  Mass.  488. 

10  Grant  v.  Shaw,  IG  Mass.  341;  8  Am.  Dec.  142. 

11  Wood  V.  Partridge,  11  Mass.  488  ;  Strauss  v.  Railroad  Co.,  7  W.  Va.  368 ; 
Baltimore  etc.  R.  Co.  v.  Gallahue,  14  Gratt.  563  ;  Thorp  v.  Preston,  43  Mich. 
511. 

12  Say  ward  v.  Drew,  6  Me.  263. 

i3Salim  V.  Cooper,  15  Gray,  532.     See  Walker  v.  McGehee,  11  Ala.  273. 

i^Martz  V.  Detroit  etc.  Ins.  Co.,  28  Mich.  201  ;  Thorp  v.  Preston,  42  Mich.  511; 
Godfrey  v.  McComber,  128  Mass.  188  ;  McKean  v.  Turner,  45  N.  H.  203  ;  Giea 
V.  Bechtner,  12  Minn.  279. 

i^Tucker  v.  Clisby,  12  Pick.  22  ;  Bates  v.  New  Orleans  etc.  R.  Co.,  4  Abb.  Pr. 
72. 


§  450        gaenishee's  liability  as  a  debtor.  250 

ed  ;^^  or  when  the  claim  upon  the  garnishee  is  reversionary  or 
uncertain  for  any  other  reason,  he  cannot  be  charged  in  i-espect 
thereto  as  a  debtor.^''  Thus,  where  the  contract  upon  which 
the  alleged  indebtedness  was  based,  was  to  furnish  furnaces  to 
the  garnishee,  to  his  satisfaction,  and  the  furnaces  sujiplied 
under  such  contract  were  not  accepted,  but  were  i*ejected  with- 
in a  reasonable  time,  and  another  contract  was  made,  it  was 
held  that  the  garnishee  could  not  be  charged  as  a  debtor. ^^ 

§  450.  Contingencies  by  which  Garnishee's  Liability  is  un- 
affected.— But  it  is  not  every  contingency  in  respect  to  the 
indebtedness  to  defendant  that  will  discharo-e  the  jrarnishee 
from  liability  when  summoned.  There  are  certain  elements 
of  uncertainty  that  are  perfectly  consistent  with  an  absolute 
present  indebtedness.  In  order  that  the  contingency  shall  be 
such  as  to  defeat  the  purposes  of  the  garnishment,  it  must  af- 
fect the  debt  itself.  If  it  is  certain  that  the  garnishee  is  in- 
debted, and  the  only  question  of  doubt  is  as  to  which  of  two 
rival  claimants  he  is  indebted  to,  he  may  be  held  until  this 
question  is  determined  between  the  parties.  "^  So  where  the 
only  matter  of  doubt  is  whether  the  garnishee  is  to  be  charged 
in  respect  to  his  possession  of  specific  chattels,  which  he  may, 
at  his  option,  return,  or  as  debtor  for  the  purchase  money,  as 
we  have  seen  elsewhere,  he  may  be  charged  as  garnishee, 
without  impairing  his  right  of  election  whether  it  shall  be  as 
debtor  or  as  one  in  possession  of  defendant's  property.^  Mere 
uncertainty  of  amount  is  not  such  a  contingency  as  to  defeat 
the  garnishee's  liability.  If  he  has  contracted  to  pay  for  work, 
the  value  of  which  is  to  be  arrived  at  by  estimates  or  measure- 
ments to  determine  the  quantity,  and  nothing  remains  to  be 
done  but  to  make  such  measurements  and  calculations  in  order 
to  entitle  tbe  contractor  to  his  money,  the  indebtedness  will  be 
regarded  as  sufficiently  certain  to  render  the  garnishee  ameu- 

16  Burke  v.  AYliitcomb,  13  Vt.  421. 

I'Eicli  V.  Waters,  22  Pick.  563  ;  Meacham  v.  McCorbitt,  2  Mete.  (Mass.)  352  ; 
Faulkner  v.  Waters,  11  Pick.  473  ;  Guild  v.  Holbrook,  11  Pick.  101  ;  Clemeut 
V.  Clement,  19  N.  H.  460  ;  Fitch  v.  Waite,  5  Conn.  117. 

IS  Webber  v.  Doran,  70  Me.  140. 

1  Thorndike  v.  DeWolf,  6  Pick.  120;  Downer  v.  Curtis,  25  Vt.  650;  Dwinel  v. 
Stone,  30  Me.  384. 

^  Supra,  §  446;  Smith  v.  Cahoon,  37  Me.  281. 


251  garnishee's  liability  as  a  debtor.         §  450 

able  to  process.^  It  is  true,  however,  that  the  amount  actually 
due  from  the  garnishee  to  the  defendant  must,  in  general,  be 
arrived  at,  before  there  can  be  a  judgment  against  the  former.* 
This  is  held  essential  as  a  foundation  for  the  judgment,  in 
Louisiana,^  and  would  probably  be  so  I'egarded  In  most  of  the 
States,  at  least  so  far  as  might  be  necessary  to  determine 
whether  the  indebtedness  was  sufScient  to  cover  the  amount 
of  plaintiff's  judgment  against  the  principal  defendant.  It 
may  be  somewhat  uncertain  when  the  amount  of  garnishee's 
indebtedness  will  be  j^ayable.  This  is  not  the  element  of  un- 
certainty or  contingency  that  will  release  him  from  liability. 
Much  less  would  he  be  entitled  to  discharge,  where  nothing' 
but  the  lapse  of  a  time  certain  was  necessary  to  render  the 
debt  due  and  payable. 

^7here  a  sum  of  money  is  deposited  for  a  certain  purpose, 
and  is  not  used  for  the  purpose  of  the  deposit,  it  becomes  a 
"  debt  due  "  the  depositor,  and  as  such  may  be  reached  by  his 
creditors  through  process  of  garnishment.^  The  distinction 
should  be  observed  between  present  debts  payable  in  the  fu- 
ture, and  future  indebtedness.  The  one  is  a  debt,  and  the 
other  will  be  or  may  be.  If  a  party  will  be  entitled  to  a  sum 
certain  upon  completion  of  work  undertaken  by  him,  there  is 
no  "  credit,"  within  the  meaning  of  the  attachment  law,  until 
the  work  is  completed ;  and  it  matters  not  how  certain  it  may 
be  regarded,  as  a  fact,  that  the  time  will  come  when  the  con- 
tracting party  will  have  a  just  demand  for  the  agreed  sum  ;  un- 
til that  time  arrives,  his  interest  in  the  sura  payable  cannot  be 
reached  by  garnishment  of  the  party  by  whom  it  is  to  be  paid.'^ 
This  is  easily  distinguished  from  a  present  promise  to  pay  in  the 
future,  where  nothing  but  time  is  required  to  mature  the  demand. 
If,  at  the  time  of  service,  the  party  summoned  has  not  received 
goods  which  he  purchased  on  a  credit,  it  is  held  that  he  has 
not  yet  become  indebted  to  the  seller,  and  cannot  be  garnished 
at  the  suit  of  the  latter's  creditors.^ 

2  Ware  v.  Gowen,  65  Me.  534. 
^  Poor  t'.  Colburn,  57  Pa.  St.  415. 
6  Marks  r.  Reinberg,  16  La.  An.  348. 
6  Balliet  v.  Brown,  103  Pa.  St.  546. 

''  Early  r.  Redwood  City,  57  Cal.  19a,    See  Kittlfi  «.  Harvey,  21  Vt.  301;  Otia 
V.  Ford,  54  Me.  104. 
8  Hitchcock  V.  Miller,  48  Mich.  G03. 


§  451        garnishee's  liability  as  a  debtor.  252 

The  doctrine  laid  down  by  tlie  Courts  in  regard  to  unadjusted 
losses  under  policies  of  insurance  is,  that  the  mere  fact  that 
the  amount  is  somewhat  uncertain,  does  not  render  them  con- 
tingent demands  against  the  insurer.^ 

§  451.  Conditional  Obligations  as  a  Foundation  for  Garnisli- 
inont. — There  is  also  a  distinction  to  be  observed  between  con- 
tingencies upon  which  the  indebtedness  depends,  and  mere  con- 
ditions to  the  liability  which  may  be  met  by  the  obligee,  or  hia 
successor  in  interest.  Such  conditions  as  these  may,  or  may 
not,  be  held  to  entitle  the  garnishee  to  release  from  liability; 
or  they  may  only  be  held  to  subject  his  liability  as  garnishee 
to  the  same  conditions  imposed  by  the  contract  upon  defendant. 
Thus,  where  defendant  had  a  demand  for  a  legacy  against  gar- 
nishee as  executor,  which  he  could  not  recover  without  giving 
the  executor  a  refunding  bond,  it  was  held  that  befoi'e  the  ex- 
ecutor could  be  charged  as  srarnishee  at  the  suit  of  defendant's 
creditoi',  the  plaintiff  must  furnish  the  required  indemnity.^ 
This  Is  upon  the  principle  that  the  creditor  can  have  no  rights 
superior  to  those  of  the  defendant,  in  whose  shoes  he  stands  In 
connection  with  the  claim  against  the  garnishee.^  Where, 
however,  the  party  summoned  was  a  railroad  corporation,  and 
the  defendant  was  a  contractor  who  was  only  entitled  to  re- 
ceive the  agreed  or  estimated  value  of  his  work  upon  execut- 
ing a  release  of  all  claims  or  demands  arising  out  of  the  con- 
tract, It  was  held  that  the  Company  could  not  be  charged  as 
garnishee.^  The  condition  In  this  case  was  one  which  prob- 
ably no  one  but  the  contractor  himself  could  comply  with. 
It  introduces  an  element  of  uncertainty  which  It  seems  Is  en- 
titled to  very  little  toleration  at  the  hands  of  the  Court.  It 
imposes  an  absurd  condition,  requiring  a  written  release  of 
oil  claims  and  demands  arising  out  of  the  contract,  which 
would  only  be  held  of  about  the  same  binding  force  as  an  or- 
dinary receipt.  It  was  probably  made  a  condition  of  the  con- 
tract. In  order  to  commit  the  contractor  to  the  correctness  and 
thoroughness  of  the  estimates.     And  yet  it  is  permitted  to 

9  Post,  §  453. 

1  Ross  V.  McKinny,  2  Rawle,  227. 

SFenton  r.  Black,  10  Mo.  App.  536;  Fitzgerald  v.  Hollingsworth,  12  Neb.  188, 

3  Baltimore  etc.  R.  Co.  v.  McCuUougb,  12  Gratt.  595. 


253  garnishee's  liability  as  a  debtor.         §  452 

stand  as  an  indispensable  condition,  and    seems    to   embrace 
something  more  than  what  is  actually  paid  under  the  contract. 

§  452.  The  Debt  should  be  Payable  in  Money. — It  does 
violence  to  all  preconceived  notions  of  the  meanino"  of  terms 
used  in  a  civilized  tradini^  community,  to  spenk  of  "  payment  " 
being  made  in  anything  but  money  ;  or  of  one  being  "  indebted  " 
in  any  other  medium  of  payment.  Where  it  is  a  question  of 
barter,  one  may  undoubtedly  agree  to  deliver  a  quantity  of 
merchandise  ;  and  for  failure  to  keep  and  perform  his  part 
of  the  contract,  if  the  value  of  the  commodities  to  be  delivered! 
had  been  stated,  would  be  indebted  in  a  sum  as  damages  which 
could  be  readily  ascertained  by  reference  to  the  contract  it- 
self. It  was  in  general  harmony  with  this  doctrine  that  it 
was  held,  where  a  contract  was  made  for  the  payment  of  a 
specified  sum  in  work  and  labo?,  that  the  promissor  might  be 
held  as  garnishee  of  the  promisee.^  In  Iowa,  where  by  ex- 
press contract  a  liability  was  made  payable  in  "merchandise  or 
trade,"  it  was  held  that  the  judgment  against  the  garnishee 
should  be  conditional,  allowing  him  to  turn  over  the  property 
to  the  sheriff.^  Where  the  contract  is  to  deliver  a  specific  ar- 
ticle, which  is  sufficiently  described  and  set  apart,  it  would  be 
quite  as  logical  to  hold  the  garnishee  on  his  answer  as  one  in 
possession  of  property  of  defendant,  as  to  abrogate  the  contract, 
and  collect  damages  for  its  breach. 

The  weight  of  authority,  where  the  Courts  are  controlled  by 
no  exceptional  legislation  on  this  subject,  is,  that  one  cannot  be 
held  as  garnishee  on  a  promise  to  pay  in  anything  other  than 
money. ^  It  is  so  held,  where  the  promise  is  to  deliver  in  pay- 
ment a  given  quantity  in  value  of  commodities.^  Where  pay- 
ment is  to  be  made  in  negotiable  paper,  accounts,  or  orders  on 
a  third  party ,^  and  the  agreement  of  the  garnishee  is  to  satisfy 

1  Londerman  v.  Wilson,  2  Har.  &  J.  379. 

2  Stadler  v.  Parmlee,  14  Iowa,  175. 
8  Bartlett  v.  Wood,  32  Vt.  372. 

^  McMinn  v.  Hall,  2  Tenn.  328 ;  Weil  v.  Tyler,  38  Mo.  545  ;  Smith  v.  Davis,  1 
Wis.  388  ;  GO  Am.  Dec.  390;  Blackburn  v.  Davidson,  7  B.  Mon.  101.  See  Cher- 
ry V.  Hooper,  7  .Jones,  82. 

6  Willard  v.  Butler,  14  Pick.  550;  Fuller  v.  O'Brien,  121  Mass.  422  ;  Smith  v. 
Chapman,  6  Port.  365  ;  Blair  v.  Rhodes,  5  Ala.  648  ;  Mima  v.  Parker,  1  Ala. 
421  ;  Jennings  v.  Summers,  7  How.  (Miss.)  453. 


§  452        garxishee's  liability  as  a  debtor.  254 

the  demand  against  him  by  giving  his  personal  services,  or 
work  and  materials  in  the  line  of  his  calling.^  There  is  no 
good  reason  why  provision  should  not  be  made  in  attachment 
laws  for  reaching  credits  of  this  kind,  when  they  are  of  a  char- 
acter to  be  valuable  to  others  as  well  as  defendant;  it  would  be 
a  matter  of  indifference  to  the  garnishee  whether  he  kept  the 
terms  of  his  contract  with  the  original  party,  or  with  one  who 
succeeded  to  his  rio-hts.  To  change  the  agreement  to  Avork, 
or  to  deliver  property  of  a  specified  value,  into  a  money  de- 
mand against  the  promissor,  even  with  the  aid  of  legislation, 
seems  to  be  in  effect  to  impair  the  obligation  of  a  contract. 
There  are  certain  advantages  to  the  contracting  party,  in  stip- 
ulating to  deliver  commodities  rather  than  cash,  of  which  he 
should  not  be  deprived,  so  long  as  he  is  ready  and  willing  to 
keep  his  contract  according  to  ,its  terms.  Where  the  statute 
supplies  no  remedy  for  the  anomalous  contract,  by  requiring 
the  garnishee  to  answer  as  to  agreements  of  barter  of  this  kind, 
the  Courts  have  for  the  most  part  wisely  abstained  from  ex- 
tending the  scope  of  the  statute.  The  statutory  remed}^  is  by 
allowing  the  garnishee  to  deliver  the  property  agreed  upon  to 
the  sheriff  instead  of  the  defendant,  when  the  thing  is  marketa- 
ble and  capable  of  delivery,  and  this  remedy  has  been  applied 
by  the  legislature  and  enforced  by  the  Courts.'  But  jDcrsonal 
services,  and  such  things  as  "  board,"^  which  a  party  may  agree 
to  furnish  to  particular  individuals,  cannot  always,  without  ut- 
terly disregarding  the  spirit  of  the  contract,  be  conferred  upon 
a  different  person  or  persons  than  those  agreed  upon.  If  one 
agrees  to  take  another  into  his  family  as  a  boarder,  or  to  give 
his  own  personal  services  to  another,  in  consideration  of  some 
advantage  bestowed  by  the  other  contracting  party,  the  means 
of  satisfaction  afforded  may  have  been  the  main  inducement 
to  the  acceptance  of  the  consideration.  And  the  personal  re- 
lations of  the  parties  could  not  be  without  their  influence  in 
measuring  the  value  of  the  services  agreed  upon.  One  cannot 
sell  the  services  of  another,  unless  the  other  agrees  to  the  bar- 
gain. 

6  "Wrigley'ij.  Geyer,  4  Mass.  102.    See  Aldrich  v.  Brooks,  25  N".  H.  241. 
■^  Clark  V.  King,  2  Mass.  524  ;  Comstock  v.  Farnum,  2  Mass.  96  ;  Marshall  v. 
G.  G.  R.  &  B.  Co.,  5  La.  An.  360. 
8  Aldrich  v.  Brooks,  25  N.  H.  241. 


255  garnishee's  liability  as  a  debtor.         §  453 

§  453.  Consideration  of  the  Debt — Contracts  of  Indemnity. 
— The  debt  upon  which  the  chiitn  against  the  garnishee  is 
based,  in  order  to  possess  the  essential  feature  of  being  an  ac- 
tionable demand,  must  be  a  legal  consideration.  It  will  not 
meet  this  re([uisite  if  it  is  a  gambling  debt, ^. or  one  arising 
from  transactions  immoral  in  their  character,  or  contrary 
to  public  [)olicy.  Where  the  sale  of  intoxicating  liquors  is 
prohibited  by  the  law  of  a  State,  and  as  an  incident  of  such 
prohibition  it  Is  prescribed  that  no  debt  arising  from  the  pro- 
hibited traffic  shall  be  collected  by  process  of  law,  such  debt- 
ors will  not  be  held  subject  to  gax-nlshment,  whether  the  debt 
is  contracted  within  the  State  or  elsewhere.^  The  jiarnlshee 
has  a  right  to  precisely  the  same  defenses  as  though  he  had 
been  proceeded  against  by  his  creditor  using  ordinary  process. 
Amongst  these  defenses  Is  that  of  want  or  failure  of  consider- 
ation. 

But  the  consideration  of  the  contract  need  not  be  one  passing 
directly  to  the  garnishee  himself.  If  the  garnishee  has  agreed 
with  the  defendant  to  pay  the  latter  a  specified  sum,  In  consider- 
ation of  some  benefit  conferred  upon  a  third  party,  the  obliga- 
tion Is  as  complete  as  though  the  consideration  were  received 
directly  by  the  obligor.^  A  contract  of  indemnity,  when  any- 
thing is  done,  or  value  parted  with.  In  consideration  of  such 
promise  to  indemnify,  creates  a  debt  from  the  promissor  to 
the  promisee,  In  respect  to  which  garnishment  will  lie  in  a  suit 
by  the  promisee's  creditors.  But  it  seems  that  a  mere  as- 
sumption of  liability  is  not  regarded  in  every  Instance  as  suffi- 
cient consideration  for  a  promise  to  Indemnify.  Thus,  where 
one  gave  his  notes  in  payment  of  property  for  the  benefit  of 
another,  and  the  latter  agreed  to  furnish  the  money  to  pay 
such  notes  as  they  matured,  subsequent  to  which  the  maker 
became  insolvent  before  the  notes  matured  ;  and  In  an  action 
against  him,  the  promisor,  who  had  received  the  goods  for 
■which  the  notes  were  given,  was  summoned  as  garnishee,  it 
was  lield  that  he  could  not  be  charged  for  the  reason  that  the 
maker  of  the  notes  had  not  ])ald  them,  and  hence  was  not  dam- 

1  Weiner  v.  Pritchartt,  16  Mo.  252  ;  Ball  v.  Gilbert,  12  Met.  397. 
2McGlinchy  v.  Winchell,  G3  Me.  31. 

3Forster  v.  Fuller,  6  Mass.  58  ;  Hildreth  v.  Pinkerton  Academy,  29  N.H.227; 
Powell  V.  Browu,  3  Johns,  100  ;  Haines  v.  Haines,  6  Md.  435. 


§  454        garnishee's  liability  as  a  debtor.  256 

nified,  and  there  was  nothing  owing  under  the  contract  of  in- 
demnity.* Where,  however,  the  party  for  whose  direct  bene- 
fit the  contract  of  indemnity  is  made  has  been  subjected  to 
judgment  for  the  act  or  liability  assumed,  against  which  the 
indemnity  was  intended  to  secure  him  ;  as  where  judgment  is 
recovered  against  an  executive  officer  for  a  levy  made  by  him, 
against  the  consequences  of  which  levy  a  bond  of  indemnity 
has  been  given,  it  is  held  that  the  party  giving  the  bond  is  in- 
debted to  the  officer,  beyond  doubt  or  contingency,  except  as 
to  amount,  and  may  be  held  as  garnishee.^  Policies  of  insur- 
ance are  contracts  of  indemnity  of  a  somewhat  different  char- 
acter as  respects  the  consideration.  In  these  the  consideration 
is  the  premium,  and  the  policy  furnishes  the  standard  by  which 
the  amount  of  the  liability  may  be  ascertained  and  fixed. ^  The 
liability  accrues  when  the  loss  occurs,  and  the  insurer  becomes 
the  debtor  of  the  assured,  even  before  the  loss  Is  adjusted,"  and 
may  be  held  as  garnishee  in  an  action  by  attachment  against 
the  latter.^ 

§  454.  Capacity  in  which  the  Debt  is  Contracted. — Where 
the  debt  is  contracted  by  the  garnishee  in  a  public  capacity,  as 
by  an  officer  of  the  general  government,  a  State,  county,  or 
municipal  corporation,  he  ^cannot  be  summoned  as  garnishee, 
for  the  same  reasons  that  he  cannot  be  so  charged  In  respect 
to  property  held  by  him  in  such  official  capacity.^  The  gen- 
eral doctrine  of  this  exemption  applies  alike  to  municipal  cor- 
porations when  summoned  in  their  corporate  capacity  as  debt- 
ors, and  to  public  officers  who  represent  any  branch  of  gov- 
ernment In  the  distribution  of    funds.^     The  general  govern- 

^Townsend  v.  Atwater,  5  Day,  298. 

e  Downer  v.  Topliff,  19  Vt.  399 

6 Drake  on  Attachment,  §  549. 

■^Knox  V.  Protection  Ins.  Co.,  9  Conn.  430  ;  25  Am.  Dec.  33  ;  ISTortb  "Western 
Ins.  Co.  V.  Atkins,  3  Bush,  328.  Contra,  McKeanr.  Turner,  45  N.  H.  203  ;  Gies 
V.  Bechter,  12  Minn.  279. 

8  Franklin  Fire  Ins.  Co.  v.  West,  8  Watts  &  S.  76  ;  Girard  Fire  Ins.  Co.  v. 
Field,  45  Pa.  St.  129  ;  Boyle  v.  Franklin  Fire  Ins.  Co.,  7  Watts  &  S.  7G  ;  North 
Starr  etc.  Co.  r.  Ladd  (Minn.), 20  N.  W.  Eep.  334  ;  Coykendally.  Ladd  (Minn.), 
21  N.  W.  Rep.  7.33. 

1  Ante,  §§  418-422, 

^Mechanics'  etc.  Bank  v.  Hodge,  3  Rob.  (La.)  373;  McLellan  v.  Young,  54 
Ga.  399  ;  21  Am.  Rep.  27G  ;  Mayor  etc.  of  Mobile  v.  Rowland,  2(j  Ala.  498 ; 


257  garnishee's  liability  as  a  debtoe.         §  454 

ment  or  the  State,  when  indebted,  cannot  be  held  as  garnishees, 
for  the  general  reason  that  they  cannot  be  sued,^  As  to  pub- 
lic officers  and  municipal  corporations,  the  rule  is  changed  by- 
statute,  so  that  under  the  general  power  to  hold  them  as  gar- 
nishees, an  officer  may  be  garnished  in  respect  to  money  of 
the  corporation  in  his  hands  collected  from  fines  and  forfeit- 
ures.* But  as  regards  the  State,  it  has  been  held  exempt  from 
process  of  garnishment,  even  where,  by  the  constitution  and 
laws,  it  may  be  sued  by  its  own  creditors  in  its  own  Courts.^ 
In  addition  to  this,  it  is  held  contrary  to  public  policy  to  in- 
volve public  interests  in  private  contracts  of  this  kind.^  There 
are  some  exceptions  to  the  holdings  of  the  Courts  as  to  the  li- 
abilities of  municipal  corporations  ;  it  being  decided  that  as 
such  corporations  may  be  sued,  they  may  be  effectually  served 
as  garnishees."  But  the  contrary  doctrine  is  too  generally  ac- 
cepted and  approved  to  be  disturbed  by  exceptional  rulings  in 
favor  of  the  liability  of  municipal  corporations  to  garnishment. 
The  proposition  that  an  officer  cannot  be  held  as  a  debtor  of 
the  party  to  whom  he  is  required  in  the  course  of  his  official 
duty  to  pay  public  money,  admits  of  no  exception.  If  he  may 
be  garnished  under  the  provisions  of  a  statute,  it  would  be  as 
one  in  possession  of  property  of  the  defendant,  and  not  as  a 
debtor.  When  he  acts  in  his  official  capacity  in  making  the 
contract  from  which  public  indebtedness  arises,  it  is  equally 
clear  that  he  is  not  the  debtor,  and  cannot  be  so  charged.  If 
the  municipality  is  subject  to  garnishment  as  a  debtor,  it  must 
be  upon  the  ground  that  either  a  special  statute,  or  the  gener- 

City  of  Mempliis  v.  Laski,  9  Heisk.  511 ;  24  Am.  Rep.  327  ;  McDougal  v.  Board 
of  Supr's,  4  Minn.  184  ;  Merwin  v.  City  of  Chicago,  45  111.  133  ;  City  of  Chicago 
I'.  Hasley,  25  111.  596  ;  Moore  v.  Mayor  of  Chattanooga,  8  Heisk.  850  ;  Pierson  v. 
McCorinick,  1  Clark.  (Pa.)  201  ;  Parsons  v.  McGavock,  2  Tenn.  Ch.  581  ;  RoUo 
V.  Andes  Ins.  Co.,  23Gratt.  509  ;  14  Am.  Rep.  147  ,  Stillman  v.  Isham,  11  Conn. 
124  ;  Spalding  v.  Tmlay,  1  Root.  (Conn.)  551  ;  Tracy  v.  Hornbuckle,  8  Bush.  33G  ; 
Webb ).'.  McCauley,  4  Bush.  8  ;  Wendell  v.  Pierce,  13  N.  H.  502  ;  Wild  v.  Fer- 
guson, 23  La.  An.  752  ;  Wilson  v.  Bank  of  La.,  55  Ga.  98  ;  Mayor  etc.  of  Balti- 
more V.  Root,  8  Md.  95. 

3  McMerkin  v.  State,  9  Ark.  553. 

4  Smoot  V.  Hart,  33  Ala.  09. 
6  Ante,  §  418. 

«  Speed  V.  Brown,  10  B.  Mon.  108,  and  cases  cited  swpra. 
'>  Speed  V.  Brown,  10  B.  Mon.  108  ;  Whidden  v.  Drake,  5  N.  H.  IS  ;  Wales  v. 
City  of  Muscatine,  4  la.  302  ;  Wilson  v.  Lewis,  10  E.  I.  285. 
II.  Attach.— 17. 


§  455        garnishee's  liability  as  a  debtor.  258 

al  language  of  the  attachment  law  extends  to  debtors  of  this 
class. 

The  officers  of  Courts  are,  under  certain  circumstances,  held 
subject  to  garnishment,  in  consequence  of  having  received 
money  of  the  principal  defendant,  but  this  is  not  upon  the 
ground  that  they  are  the  debtors  of  the  parties  whose  money 
they  hold.  The  exceptional  circumstances  under  which  they 
may  be  effectually  served  with  process  of  garnishment,  as  well 
as  the  grounds  upon  which  they  are  generally  regarded  as  ex- 
empt, have  been  given  in  detail  in  a  former  chapter.^ 

§  455.  Same — Executors  and  Administrators. — In  general, 
the  personal  representatives  of  a  decedent  are  held  not  liable 
as  garnishees,  ^in  respect  to  unpaid  legacies  or  distributive 
shares  in  their  hands,  prior  to  an  order  of  distribution,  if  at  all.^ 
Upon  a  settlement  of  the  estate  and  an  order  of  distribution, 
there  seems  no  good  reason  why  the  administrator  should  not 
be  held  amenable  to  this  process,  as  having  in  his  possession  a 
portion  of  the  effects  of  the  distributee,  and  it  is  so  decided.^ 
But  it  is  also  held,  that  an  administrator  cannot  be  charged  as 
garnishee  in  foreign  attachment,  brought  to  recover  a  debt  due 
from  the  intestate,  though  he  have  effects  in  his  hands. ^  So 
the  administrator  cannot  be  required  to  answer  whether  or  not 
his  intestate  was  indebted  to  the  principal  defendant.*  Nor 
can  he  be  held  as  garnishee  of  the  intestate  in  an  action  against 
the  estate.^  But  this  goes  only  to  the  question  of  the  liability 
of  a  personal  representative  as  to  debts  contracted  by  the  de- 
cedent. The  further  question  remains,  as  to  whether  the  ad- 
ministrator or  executor  may  be  garnished  in  respect  to  debts 
contracted  by  himself  while  acting  in  his  representative  capac- 
ity, and  if  so,  in  what  manner,  and  to  what  extent?  In  the 
absence  of  authority  bearing  directly  upon  the  proposition,  and 

8  Ante,  §§  420,  421. 

1  Parker  v.  Donnolly,  4  "W.  Ya.  648 ;  Ante,  §§  425,  426.  See  also  Shewell  v. 
Keen,  2  Whart.  332  ;  30  Am.  Dec.  266  ;  Terry  v.  Lindsay,  1  Stew.  &  Port.  317. 
Contra,  Stratton  v.  Ham,  8Ind.  84. 

2  Richards  v.  Griggs,  16  Mo.  416  ;  51  Am.  Dec.  240 ;  Curling  v.  Hyde,  10  Mo. 
375. 

3"Waite  V.  Osborne,  11  Me.  185. 

4  Welch  V.  Gurley,  2  Haywood,  334. 

6  Commercial  Bank  v.  Neally,  39  Me.  402. 


259     .      garnishee's  liability  as  a  debtor.         §  456 

relying  mainly  on  analogy,  it  would  seem  that  where  the  ex- 
ecutor or  administrator  contracts  debts  in  his  representative 
character,  lie  might  in  the  same  character  be  called  upon  to 
answer  as  garnishee,  in  a  suit  against  his  creditor  ;  but  that 
lie  could  not  be  required  to  answer,  under  such  circumstances 
in  his  private  capacity,  nor  could  he  be  held  to  answer  as  ex- 
ecutor or  administrator,  in  an  action  by  his  personal  creditor. 
When  one  is  indebted  to  the  representative  in  his  official  char- 
acter, he  is  a  debtor  of  the  estate,  and  not  of  the  individual, 
and  can  only  be  held  as  garnishee  in  an  action  against  the  es- 
tate.^ Upon  the  other  hand,  if  his  indebtedness  is  to  the  indi- 
vidual, he  cannot  be  garnished  at  the  suit  of  a  creditor  of  the 
decedent,  or  one  to  whom  the  personal  representative  is  indebt- 
ed officially." 

§  456.  Debts  contracted  in  a  Private  Representative  Ca- 
pacity.— There  are  certain  relations  between  private  parties, 
where  one  may  represent  the  other  in  a  manner  that  exempts 
the  representative  from  liability  as  garnishee  in  respect  to  debts 
contracted  in  behalf  of  the  principal,  as  effectually  as  though 
the  representative  were  a  public  officer.  Where  the  liability 
is  assumed  by  a  foreign  corporation,  in  the  absence  of  a  stat- 
ute providing  for  serving  such  corporations  with  process,  there 
is  no  method  by  which  they  can  be  garnished.  The  difficulties 
in  the  way  of  enforcing  the  appearance  of  non-residents  as 
garnishees  have  already  been  noticed.^  These  difficulties  are 
enhanced  when  the  non-resident  is  a  foreign  corporation,  for 
the  reason  that  it  cannot  be,  in  contemplation  of  law,  even 
temporarily  in  any  State  other  than  that  from  which  it  holds 
its  charter.^  The  only  effective  method  of  obviating  this  ob- 
struction to  speedy  justice,  is  that  adopted  in  many  of  the 
States,  of  exacting  from  such  organizations  a  stipulation  that 
they  will  accept  service  of  process  when  served  upon  a  desig- 
nated agent,  and  submit  to  the  jurisdiction  thus  acquired  over 
them,  for  all  the  purposes  of  a  suit.     Upon  this  condition  they 

^Lessing  v.  Yertrees,  32  Mo.  431. 

7  See  Presnall  v.  Mabry,  3  Port.  105. 

^Ante,  §  344.    See  Cronin  v.  Foster,  13  E.  1. 196, 

2uln(e,  §  343. 


§  456        garnishee's  liability  as  a  debtor,       ^      260 

are  permitted  to  carry  on  business  in  the  State,  and  where  ser- 
vice of  process  of  garnishment  is  made  according  to  this  stip- 
ulation, it  is  as  binding  on  the  garnishee  as  original  process 
would  be  in  a  direct  action  against  the  corporation.^  But  a 
debt  due  from  a  foreign  Insurance  Company,  arising  from  a 
loss,  cannot  be  attached  by  serving  the  j^rocess  upon  the  agent 
who  signed  the  policy  for  the  company,  unless  he  is  the  indi- 
vidual designated.  Nothing  is  accomplished  by  serving  him 
as  the  debtor.  He  assumed  no  risk,  and  the  loss  imposed  no 
liability  on  him,  and  hence  he  could  not  be  adjudged  to  pay 
the  demand.*  For  like  reasons,  a  committee  representing  a 
voluntary  organization  in  signing  a  contract  by  which  the  body 
represented  became  indebted  to  the  defendant,  could  not  be 
charged  as  garnishees.^  And  so  when  it  appears  that  the  debt 
was  contracted  by  the  party  summoned,  not  as  his  personal 
obligation,  but  as  the  agent  or  representative  of  another,  and 
the  credit  was  given  to  the  principal,  he  and  not  the  agent 
must  be  garnished,  in  order  to  have  the  amount  of  such  indebt- 
edness applied  in  satisfaction  of  the  judgment  against  his  cred- 
itor.^ In  order  to  hold  the  garnishee,  it  must  appear  that  there 
is  a  debt  owing  from  him,  in  the  capacity  in  which  he  is  sum- 
moned, to  defendant  in  the  capacity  in  which  the  latter  is  sued." 
There  must  be  goods,  effects,  or  credits  in  the  hands  of  the 
garnishee.^  A  claim  against  a  county  for  jury  service  was 
held  to  be  neither  of  these — it  being  held  that  it  was  not  a 
credit,  for  the  reason  that  the  demand  did  not  arise  in  contract 
express  or  implied,  but  was  comjiensation  for  compulsory  ser- 
vice.^ Where  a  party  simply  represented  his  wife  in  manag- 
ing the  business  of  a  firm  of  which  she  was  a  member,  it  was 
held  that  the  partnership  did  not  thereby  become  indebted  to 
him  for  services,  creating  a  credit. in  their  hands  that  could  be 
reached  by  garnishment  process. ^'^ 

SBarr  v.  King,  96  Pa.  St.  485  ;  Darlington  v.  Rogers,  13  Phila.  102. 
4  "Wells  V.  Green,  8  Mass.  504. 

6  Hewitt  V.  Wheeler,  22  Conn.  557. 

6Lewis  V.  Smith,  2  Cranch  C.  G.  571 ;  Smith  v.  Posey,  2  Hill  (S.  C.),  471. 

7  Adams  r.  Avery,  2  Pitts.  77. 

8  Clark  V.  Clark,  62  Me.  255. 
^Williams  v.  Boarclman,  9  Allen,  570. 
lODupuy  V.  Sheak,  57  Iowa,  36L 


261  garnishee's  liability  as  a  debtor.         §  457 

§  457.  The  Plaintiff  as  Garnishee. — Where  the  plaintiff  is 
in  actual  possession  of  the  property  which  belongs  to  his  debt- 
or, it  might  be  of  some  advantage  to  levy  on  such  property 
under  a  writ  of  attachment ;  but  even  then,  direct  seizure 
would  in  general  be  the  better  mode  of  procedure.  Still  it 
might  be  effectually  accomplished  by  garnishment,  when  the 
process  is  not  confined  to  cases  where  "  third  parties  "  are  in 
possession  of  the  property.^  When,  however,  the  attaching 
creditor  is  indebted  to  his  debtor,  it  hardly  seems  a  practical 
matter  of  inquiry  whether  he  may  garnish  himself  in  respect 
to  a  debt  which  he  owes  to  the  attachment  defendant.  If  the 
claim  of  the  plaintiff  against  defendant  is  one  which  will  sup- 
port garnishment,  it  will  also  be  available  as  a  set-off.  There 
is  no  conceivable  advantage  to  be  gained,  either  as  to  security 
or  priority,  by  attachment  of  a  debt  which  can  be  attached  by 
no  one  else,  and  which  cannot  be  collected  b}^  the  creditor. 
An  ordinary  action  for  the  balance  due  would  serve  every 
purpose  of  facilitating  the  closing  of  the  accounts  between  the 
parties.  And  yet  this  question  is  discussed  by  the  Supreme 
Court  of  Massachusetts.^  Judge  Drake,  in  his  work  on  attach- 
ments, calls  attention  to  this  question,  and  cites  some  authori- 
ties which  I  have  not  yet  examined,  as  supporting  the  proposi- 
tion that  a  plaintiff  may  attach  by  garnishment  credits  in  his 
own  hands. ^  The  learned  author  also  presents  a  Tennessee 
case  embracing  the  following  facts  :  A,  B  and  C,  as  partners, 
were  indebted  to  D,  by  note.  D  sued  on  the  note,  and  ob- 
tained judgment  against  A  and  B,  but  not  against  C,  who  was 
a  non-resident ;  and  issued  execution  which  was  returned  roulla 
hona,  A  and  B  being  insolvent.  C  held  a  note  made  to  him 
by  D  and  E,  which,  to  avoid  the  claim  of  creditors,  he  trans- 
ferred by  assignment  to  F,  a  resident,  without  consideration, 

^  See  Coble  v.  JSTonemaker,  78  Pa.  St.  601 ;  Blaisdell  v.  Ladd,  14  N.  H.  129 ; 
Hoag  V.  Hoag,  55  IST.  H.  172  ;  Drake  on  Attachment,  §  543. 

2  Belknap  w.  Gibbons,  13  Met.  471.  A  portion  of  the  opinion  in  this  case  is 
quoted  in  a  note  by  ,ludge  Drake,  in  which  the  Chief  Justice  points  out  some 
of  the  incongruities  of  such  procedure  for  the  purpose  of  reaching  credits  in 
the  hands  of  the  plaintiff.  Although  the  question  is  not  decided,  the  inclina- 
tion of  the  Court  is  against  permitting  a  plaintiff  to  garnish  himself.  Drake 
on  Attachment  (5th  Ed.),  §  543  (note). 

8  Grayson  v.  Veeche,  12  Mart.  688  ;  13  Am.  Dec.  384  ;  Richardson  v.  Gumey, 
9  La.  285  ;  Lyman  v.  Wood,  42  Vt.  113. 


§  457        garnishee's  liability  as  a  debtor  262 

and  for  the  benefit  of  C.  Suit  was  brought  on  this  note  by  F, 
and  judgiucnt  obtained  against  D  and  E,  and  all  the  money 
paid  to  C  except  an  amount  equal  to  the  claim  of  D  against  C, 
on  the  note  of  A,  B  and  C.  While  matters  were  in  this  posi- 
tion, D  filed  his  bill  in  chancery  against  C  and  F,  to  subject 
the  indebtedness  of  D  and  E  to  C,  to  the  payment  of  C's 
debt  to  D,  and  the  Court  sustained  the  bill.^  But  this  is  not 
a  plain  case  of  garnishment  under  the  ordinary  attachment 
statute.  It  is  a  proceeding  in  chancery,  where  powers  are 
reposed,  intended  to  be  commensurate  to  every  emergency 
where  the  statute  has  not  supplied  an  adequate  remedy.  In 
the  course  of  the  opinion  from  which  the  above  statement  is 
epitomized,  the  judge  delivering  the  views  of  the  Court  takes 
occasion  to  say  :"  *  *  *  It,  to  be  sure,  in  order  to  make  the 
remedy  eifectual,  under  the  circumstances  of  this  case,  requires 
that  the  Court  should  enjoin  the  the  judgment  of  F,  assignee, 
against  D  and  E.  When  the  rights  of  the  parties  are  deter- 
mined, that  becomes  the  appropriate  mode  of  relief  in  this  par- 
ticular case."^ 

4  Drake  on  Attachment,  §  543,    Citing  Boyd  v.  Bayless,  4  Humph.  386;  Ar- 
ledge  V.  White,  1  Head,  241. 

5  Boyd  V.  Bayless,  4  Humph.  386. 


CHAPTER  XXXVr. 

garnishee's   indebtedness   evidenced    by   negotiable 
nstruments. 

§  458.    Maker  of  negotiable  paper  as  garnishee. 

§  459.  Reasons  for  the  rule  that  negotiable  credits  cannot  be  reached  by  gar- 
nishment of  the  debtor. 

§  460.  Circumstances  that  destroy  the  negotiability  of  instruments — No  ex- 
ceptions to  the  rule. 

§  461.    Conditional  garnishment  of  payer  of  negotiable  paper  before  maturity. 

§  462.    Garnishment,  where  instrument  has  been  fraudulently  assigned. 

§  463.     Effect  of  notice  of  garnishment  upon  rights  of  indorsee. 

§  464.    By  what  law  the  negotiability  of  the  instrument  is  to  be  determined. 

§  458.  Maker  of  Negotiable  Paper  as  Garnishee. — What- 
ever be  the  form  of  commercial  pap)er  that  evidences  the  orig- 
inal liability  of  the  party  summoned,  as  a  general  rule,  he  can- 
not be  charged  as  the  debtor  of  the  payee,  if  the  paper  was  ne- 
gotiable when  issued,  and  still  retains  its  negotiability. ^  This, 
of  course,  is  a  principle  that  is  qualified  in  its  application,  as 
the  reasons  upon  which  it  is  based  are  absent,  or  appear  in  a 
modified  degree  in  any  particular  case.  The  obvious  reason 
for  the  general  acceptance  of  the  doctrine  embraced  in  the 
proposition  is,  that  the  party  summoned  cannot  say  that  he  is 
indebted  to  the  defendant,  or  that  by  reason  of  such  indebted- 
ness he  may  not  become  indebted  to  some  one  else,  against 
whose  demand  the  judgment  against  himself  as  garnishee  will 
be  no  pi'otection.  When  the  paper  evidence  of  debt  is  nego- 
tiable under  the  law  merchant,  there  needs  no  notice  to  the 
debtor  to  render  the  transfer  of  his  obligation  absolute.  The 
service  of  process  of  garnishment  does  not  affect  the  negotia- 
bility of  the  note  or  bill.     The  promise  is  out,  not  only  to  pay 

1  Cloughi).  Buck,  6  Neb.  343  ;  County  of  Cass  v.  Gillett,  100  U.  S.  585  ;  County 
of  Warren  v.  Marcy,  97  U.  S.  96  ;  Durant  v.  Iowa  County,  1  Woolw.  69  ;  Day 
r.  Zimmerman,  88  Pa.  St.  188  ;  Bassett  v.  Garthwaite,  22  Tex.  230  ;  Carson  v. 
Allen,  2  Cliand.  123  ;  Howe  v.  Ould,  28  Gratt.  1  ;  Kimball  v.  Plant,  11  La.  54; 
Kapp  V.  Teel,  33 Tex.  811 ;  Littler.  Hale,  11  Vt.482. 


§  458        garnishee's  negotiable  instruments.  264 

the  original  creditor,  who  Is  the  defendant  in  attachment,  but 
to  pay  any  one  who  may  come  into  possession  of  the  evidence 
of  debt  by  indorsement  and  delivery,  or  by  delivery  only,  as 
the  case  may  be.  Howsoever  conclusive  the  judgment  of  the 
Court  may  be  upon  the  parties  before  it,  if  rendered  without 
adjudicating  the  rights  of  the  indorsee  of  negotiable  paper,  it 
is  no  protection  to  the  garnishee.  It  may  have  gone  to  judg- 
ment against  the  garnishee,  in  consequence  of  his  laches  or  ig- 
norance, or  as  the  result  of  an  erroneous  view  of  the  hiAv  enter- 
tained by  the  Court ;  but  if  the  garnishee  pays  the  judgment,  he 
may  be  subsequently  forced  to  pay  again  to  the  party  in  posses- 
sion of  the  paper  by  regular  indorsement.  This  is  a  condition  of 
things  which  it  is  not  intended  that  the  law  or  its  administra- 
tion shall  bring  about.  The  garnishee  should  not  be  placed  in 
a  worse  position  than  that  occupied  by  him  prior  to  service. 
It  is  no  part  of  the  general  design  of  this  branch  of  the  attach- 
ment law  to  impose  extra  burdens  on  the  garnishee.  The  ex- 
ceptions made  by  some  of  the  Courts,  to  the  doctrine  that  the 
maker  of  a  negotiable  instrument  cannot  be  held  as  garnishee 
of  the  payee,  while  the  evidence  of  his  indebtedness  is  in  cir- 
culation, before  maturity,  cannot  be  reconciled  with  the  law 
governing  negotiable  paper.  The  better  doctrine,  and  that 
which  is  best  supported  both  on  principle  and  authority,  is 
that  the  promise  is  to  pay  the  holder  of  the  instrument,  who- 
ever he  may  be,  at  maturity,  and  that  this  obligation  is  unaf- 
fected by  any  litigation  in  which  the  instrument  is  involved  in 
the  mean  time.^  No  judgment  can  be  properly  entered  against 
the  garnishee,  requiring  him  to  pay  the  amount  of  his  debt, 
when  evidenced  in  this  manner,  to  any  other  person  than  the 
holder  of  the  negotiable  instrument  who  purchased  the  same 
for  value  and  before  maturity.^     This  doctrine  will  therefore 

2  Daniels  on  Negot.  Inst.,  §  800  a.  Citing  Murray  i'.  Lylburn,  2  Johns  Ch. 
Ml ;  Kieffer  V.  Ehler,  18  Pa.  St.  388  ;  Hill  v.  Kraft,  29  Pa.  St.  1S(J  ;  Day  v.  Zim- 
mermann,  88  Pa.  St.  188  ;  County  of  Cass  v.  Gillet,  100  U.  S.  585  ;  Mcore  v. 
Green,  4  Humph.  299  ;  County  of  ^Yarren  v.  Morey,  97  TJ.  S.  106  ;  Mayberry  v. 
Morris,  62  Ala.  113  ;  Re  Great  "Western  Tel.  Co.,  5  Biss.  363  ;  Leitch  v.  Wells, 
48  N.  Y.  585  ;  Mims  v.  West,  38  Ga.  18  ;  Durant  v.  Iowa  Co.,  1  Woolw.  69  ; 
Stone  V.  Elliot,  11  Ohio  St.  252  ;  Winston  v.  Westfeldt,  22  Ala.  560  ;  Greer  v. 
Powell,  1  Bush.  489  ;  Hutchins  v.  Evans,  13  Yt.  541. 

3  Cruett  V.  Jenkins,  53  Md.  217  ;  Stone  v.  Dean,  5  X.  H.  502  ;  Leslie  r.  Merrill, 
58  Ala.  322 ;  Hindsdill  v.  Safford,  11  Vt.  309  ;  Myers  v.  Beemau,  9  Ired.  116  ; 


2^56  garnishee's  negotiable  instruments.        §  459 

be  taken  as  the  rule  by  which  the  rights  of  parties  are  to  be 
determined,  in  all  the  States  where  the  law  merchant  is  recog- 
nized, notwithstanding  the  authorities  to  the  contrary.^ 

§  459.  Reasons  for  the  Rule  that  Negotiable  Credits  cannot 
be  reached  by  Garnishment  of  the  Debtor. — The  reasons  for  this 
rule  are  so  abundant  and  satisfactory  that  there  seems  only  one 
way  of  avoiding  its  operation,  and  that  is  by  abrogating  the 
law  of  negotiable  paper.  There  are  some  of  the  principles 
that  govern  the  relations  of  parties  to  the  garnishment  pro- 
ceeding which  are  fundamental.  One  of  these  is,  that  a  debtor 
without  fault  or  negligence  cannot  be  legally  compelled  to  pay 
his  debt  twice  over.  Another  is,  that  every  one  to  be  affected 
by  a  judgment  must  have  his  day  in  Court.  And  still  another 
might  be  added,  to  the  effect  that  Courts  have  no  power  to 
make  contracts  for  parties  litigant,  different  from  those  intend- 
ed by  themselves.  To  hold  that  the  maker  of  a  negotiable 
note  may  be  charged  as  garnishee  while  the  note  is  still  in  cir- 
culation before  maturity,  is  to  disregard  all  of  these  fundamen- 
tal principles,  or  at  least  two  of  them.  As  to  the  first  and 
second,  there  may  be  a  choice  which  of  the  two  Innocent  par- 
ties shall  be  wronged.  If  the  rights  of  the  holder  of  the  note 
are  preserved  Intact,  the  maker  is  the  victim,  as  he  may  be 
subjected  to  a  judgment  in  favor  of  the  attaching  creditor,  and 
afterwards  called  upon  to  pay  the  same  debt  to  the  holder  of 
the  note.  If,  on  the  other  hand,  the  power  of  the  Court  is 
sufficient  to  protect  the  garnishee  against  second  payment,  the 
indorsee  of  the  note  must  suffer.  The  contract  made  by  the 
maker  of  the  note  was  not  unconditionally  to  pay  the  payee, 
but  to  pay  the  legal  holder  at  maturity.  To  compel  him  to 
satisfy  the  debt  in  any  other  manner,  is  to  reform  his  contract. 
Under  s})eclal  circumstances,  where  the  proceeding  was  in  a 
Court  of  Equity,  and  plaintiff  might  call  to  his  aid  the  chan- 

Gaffney  v.  Bradford,  2  Bailey,  441  ;  Kinsley  v.  Evans,  34  Ohio  St.  158  ;  Igle- 
hart  V.  Moore,  21  Tex.  501  ;  Basset  v.  Garthwaite,  22  Tex.  2:^0  ;  Gregory  u.  Hig- 
giiiH,  10  Cal.  339  ;  Brittaiu  v.  Anderson,  8  Baxt.  316  ;  Hiiot  v.  Ely,  17  Fla.  775  ; 
Davis  u.  Powlette,  3  Wis.  300  ;  Carson  v.  Allen,  2  Pinney,  457  ;  2  Chand.  123  ;  54 
Am.  Doc.  148  ;  Hubbard i>.  Williams,  1  Minn.  54  ;  Greer  v.  Powell,  1  Bush.  489; 
Littletield  v.  Hodge,  6  Mich.  326  ;  Speight  v.  Brock,  Freeman,  389. 

*  See  Simon  v.  Huot,  8  Hun.  378  ;  Hull  v.  Blake,  13  Mass.  153  ;  Mercam  v. 
Eundlett,  13  Pick.  515  ;  Chase  v.  Houghton,  16  Vt.  594. 


§  460       garnishee's  negotiable  instruments.  266 

eery  process  of  Injunction,  and  arrest  the  negotiability  of  the 
note,  where  It  was  found  to  be  In  the  hands  of  the  defendant ; 
and  the  Court  might  enforce  its  surrender,  so  that  it  might 
control  the  circulation  of  the  Instrument,  and  prevent  it  from 
deceivlno;  others,  the  attachment  of  negotiable  credits  mlo-ht 
be  rendered  practical.  But  under  the  general  attachment  law, 
the  Courts  are  not  clothed  with  these  extraordinary  powers. 
The  statutory  character  of  the  remedy  cuts  It  off  from  the  aid 
of  the  equitable  intervention  of  Courts,  where  it  is  not  made  a 
branch  of  the  equity  jurisprudence  of  the  State,  and  prevents 
Courts  that  reo;ard  the  o;eneral  rules  of  construction  from  con- 
triving  means  to  carry  out  its  otherwise  impossible  provisions. 
In  some  of  the  States  the  Courts  have  held,  that  under  no 
circumstances,  in  the  absence  of  fraud,  can  the  maker  of  a  ne- 
gotiable note  be  held  as  garnishee,  at  the  suit  of  creditors  of 
the  payee. ^  But  this  doctrine,  though  furnishing  a  rule  emi- 
nently safe,  goes  beyond  what  we  claim  to  be  the  general  law 
upon  the  subject ;  nor  is  It  necessary  to  a  just  balance  between 
the  rights  of  parties  to  negotiable  paper,  and  those  of  general 
creditors  who  seek  to  recover  by  process  of  attachment.  The 
free  negotiability  of  commercial  paper  may  be  preserved,  with- 
out taking  this  extreme  position. 

§  460.  Circumstances  that  Destroy  the  Negotiability  of  In- 
struments, no  Exception  to  the  Rule. — It  is  sufficient  for  the 
full  recognition  of  the  doctrine  stated,^  to  hold  that  the  maker 
of  a  negotiable  Instrument  shall  not  be  charged  as  garnishee, 
except  where,  at  the  time  of  judgment,  the  instrument  is  the 
property  of  defendant,  and  can  no  longer  be  transferred  free 
from  equities  or  defenses  that  exist  between  the  garnishee  and 
defendant.  This  is  a  state  of  things  which  generally  only  exists, 
when,  at  the  time  judgment  is  rendered,  the  instrument  is  over- 
due, and  Is  known  to  be  still  in  the  hands  of  the  defendant.^  But 
in  a  case  pi'esentlng  the  unusual  state  of  facts,  that  the  notes 
executed  by  the  garnishee   were,  for  special  reasons,  still  in 

1  Hubbard  v.  Williams,  1  Minn.  54  ;  Davis  v.  Powlette,  3  "Wis.  300  ;  Greer  v. 
Powell,  1  Bush,  489  ;  Littlefield  v.  Hodge,  6  Mich.  326. 

^  Supra,  §458. 

2  Mims  V.  West,  38  Ga,  18 ;  Burton  v.  Wynne,  55  Ga.  615  ;  Myers  v.  Beeman, 
9  Ired.  116. 


267  garnishee's  negotiable  instruments.        §  460 

his  own  control,  and  could  not  be  transferred  in  the  ordinary- 
course  of  business  by  the  payee,  it  was  held  not  in  conflict 
with  the  rule  to  hold  the  party  summoned,  as  though  the  notes 
had  not  been  negotiable  in  form.^  Authorities  that  go  the 
length  of  holding  the  maker  liable  to  garnishment,  except 
where  he  has  received  notice  of  the  assignment  of  the  instru- 
ment, cannot  be  regarded  as  conflicting,  for  the  reason  that 
they  do  not  recognize  the  doctrine  of  the  law  merchant,  which 
requires  no  notice  to  the  maker  of  negotiable  paper,  in  order 
to  effect  a  complete  transfer  of  the  title  thereto.  They  are  <le- 
cided  under  statutes  that  abrogate  this  feature  of  mercantile 
law,*  and  when  such  statutes  are  repealed,  the  same  Courts 
give  the  same  construction  to  the  attachment  law  in  tliis  con- 
nection, as  that  stated  herein,  and  hold  that  the  maker  of  a  ne- 
gotiable note  cannot  be  held  as  garnishee  in  i-espect  thereto, 
while  the  instrument  is  still  current,  and  may  by  any  possibil- 
ity come  to  the  hands  of  an  innocent  purchaser.^  The  reason 
given  by  the  Supreme  Court  of  Vermont,  during  an  interval 
when  commercial  paper  was  negotiable  in  that  State,  according 
to  the  general  acceptation  of  the  term,  was,  that  the  maker 
ought  not  to  be  held  liable  unless  he  could  rely  upon  the  judg- 
ment by  which  he  was  charged,  as  a  complete  defense  to  ac- 
tion on  the  notes  in  the  future.  "  This,"  says  the  Court,  "  he 
could  not  do,  if,  at  the  time  of  rendering  the  judgment,  the 
notes  had  been  already  indorsed,  and  the  indorsee  was  not  be- 
fore the  Court.  We  cannot  know  that  this  is  not  the  case. 
But  if  we  could  know  that  the  notes  were  now  in  tlie  hands  of 
the  payee,  in  order  to  hold  the  maker  liable,  we  must  destroy 
the  future  negotiability  of  the  notes,  *  *  *  or  else  enable  the 
holder  to  defraud  the  maker  by  negotiating  the  notes  after  the 
judgment  in  the  attachment  suit."^  Under  a  Pennsylvania 
statute  which  was  construed  to  embrace,  as  attachable  credits, 
money  due  on  negotiable  paper,  it  was  suggested  that  the  note 

8  Stone  I'.  Dean,  5  N.  H.  502. 

^Bitton  V.  Preston,  9  Vt.  257;  Kimball  v.  Gay,  16  Vt.  131 ;  Barney  v.  Doug- 
lass, 19  Yt.  98  ;  Emerson  v.  Partridge,  27  Vt.  8 ;  Peck  v.  Walton,  25  Vt.  3;i ; 
Chase  y.  Houghton,  16  Vt.  594.  See  also  Amoskeag  Man.  Co.  v.  Gibbs,  28  N. 
H.  316. 

8  Hinsdale  v.  Safford,  11  Vt.  309  ;  Little  v.  Hale,  11  Vt.  482. 

BHutchins  i;.  Evans,  13  Vt.  541. 


§  460       garnishee's  negotiable  instruments.  268 

might  be  impounded,  to  prevent  its  being  negotiated  after  judg- 
ment ngainst  the  garnishee.'  This,  however,  could  only  be  in 
tlie  exercise  of  extraordinaiy  jurisdiction,  in  order  to  bring  the 
attachment  law  into  harmony  with  the  general  system  ;  and 
Courts  would  proceed  upon  the  ground  that  it  is  a  fraud  upon 
innocent  parties  to  allow  the  instrument  to  be  circulated  after 
judgment.^  Where  the  Court  is  in  possession  of  the  means 
necessai'y  to  destroy  the  negotiability  of  the  instrument,  and 
prevent  its  subsequent  circulation  as  a  negotiable  instrument, 
it  is  practicable  to  charge  a  garnishee  in  respect  to  such  cred- 
its before  their  maturity.  But  before  the  maker  can  be  so 
charged,  irrespective  of  any  such  restraint  upon  the  circulation 
of  negotiable  paper,  it  should  appear  affirmatively  that  he  is  still 
indebted  to  the  defendant,  and  this  cannot  be  shown,  except 
by  satisfactory  evidence  that  defendant  has  not  indorsed  it  to 
some  other  person  before  maturity.^  As  a  general  rule,  it  is 
not  sufficient  that  the  answer  of  the  garnishee  admits  that  the 
note  or  bill  is  in  the  hands  of  the  original  payee  or  drawee. 
He  cannot  be  charged,  if  the  instrument  may  be  indorsed  to 
another  person  before  maturity.  Its  transfer  cannot  be  con- 
trolled by  the  maker,  and  he  will  be  bound  by  his  promise  to 
pay  the  holder  at  maturity. ^°  The  fact  that  the  maker  has  re- 
ceived no  notice  of  the  indorsement  of  the  paper,  raises  no 
presumption  that  it  is  still  in  the  possession  of  the  original 
payee,  and  so  long  as  it  is  not  due  it  is  immaterial  whether  it 
has  been  negotiated  or  not.^^  The  plaintiff  in  attachment  must 
not  only  establish  the  fact,  that  at  the  time  of  the  trial  the  note 
is  still  in  the  hands  of  the  defendant,  or,  at  least,  that  it  is  not 
passed  to  a  hova  fide  indorsee, ^^  but  it  must  appear  that  the 

''  Kieffer  ?>.  Ehler,  18  Pa.  St.  388. 

8  Adams  v.  Avery,  2  Pitts.  77;  Hill  v.  Kroft,  29  Pa.  St.  186  ;  Day  v.  Zimmer- 
man, fi8  Pa.  St.  72. 

9  Slmler  v.  Bryson,  Co  N.  C.  201  ;  Myers  v.  Beeman,  9  Ired.  110  ;  Ormond  v. 
Moye,  11  Ired.  SG-l  ;  Huff  v.  Mills,  7  Yerg.  42  ;  Daniel  v.  Eawlings,  6  Humph. 
403  ;  Yarborougli  v.  Thompson,  3  Sm.  &  M.  291  ;  41  Am.  Dec.  62(5 ;  Thompson 
V.  Shelby,  3  Sm.  &  M.  296. 

'-"  Sheets  V.  Culver,  14  La.  449,  452  ;  Durham  v.  Payne,  20  La.  An.  195  ;  Cross 
V.  Hohlman,  15  Ark.  200. 

iiErwiu  V.  Commercial  etc.  Bank,  3  La.  An.  186  ;  48  Am.  Dec.  447;  Kimball 
V.  Plant,  14  La.  449  ;  Burton  v.  Wynne,  55  Ga.  615. 

i-JuuLtion  R.  Co.  v.  Cleneay,  13  Ind.  101 ;  "\Yy brants  v.  Rice,  3  Tex.  458; 
Shuler  «.  Bryson,  65  N.  C.  201 ;  Smith  v.  Blatchford,  2  Ind.  184  ;  Cadwalader 


2C9  garnishee's  negotiable  instruments.       §  460 

instrument  has  matured,  so  that  it  will  no  longer  pass  by  in- 
dorsement, unaffected  by  the  equities  that  may  exist  between 
the  original  parties. ^'^ 

The  exemption  of  negotiable  instruments  from  the  operation 
of  garnishment  process,  will  be  carried  no  farther  than  is  nec- 
essary to  protect  the  innocent  indorsee,  and  at  the  same  time 
enable  the  garnishee  to  avoid  double  liability.  Hence,  where  a 
negotiable  note  was,  by  the  holder,  transferred  to  a  bank  as  col- 
lateral security,  and  the  maker  being  served  with  process  in  a 
suit  against  the  payee  who  had  so  transferred  it,  notwithstand- 
ing the  garnishment,  paid  the  entire  amount  to  the  bank,  he 
was  held  chargable  for  the  difference  between  the  amount  so 
paid  and  the  amount  of  the  debt  for  which  the  note  was 
pledged. ^^  In  the  Superior  Court  of  New  Yoi'k,  it  was  held 
that  where  a  bank  issues  a  certified  check  to  a  depositor, 
payable  to  his  order,  and  for  an  amount  equal  to  the  balance 
in  favor  of  such  depositor,  the  account  was  thereby  balanced, 
and  the  bank  was  liable  to  any  one  who  might  become  a  hona 
fide  holder  of  the  check  ;  that  the  claim  of  the  depositor  could 
not  be  affected  by  garnishment  served  on  the  bank,  and  that 
though  the  depositor  afterwards  deposited  the  check  and  di'cw 
out  money  on  it,  the  bank  would  not  be  liable,  for  the  reason  that 
the  service  of  process  of  garnishment  was  prior  to  the  deposit 
of  the  check,  and  would  not  reach  such  deposit.'^  In  this  case 
the  negotiable  instrument  was  cei'tainl}^  within  the  control  of 
the  maker  when  he  was  summoned  as  garnishee,  and  was  clear- 
ly not  current,  and  capable  of  being  transferred  by  indorsement. 
Or  else  the  debt  had  ceased  to  be  evidenced  by  a  negotiable 

V.  Hartley,  17  Ind.  520  ;  Stetson  v.  Cleneay,  14  Ind.  453  ;  Scott  v.  Hill,  3  Mo.  88; 
22  Am.  Dec.  462  ;  Daniel  v.  Eawlings,  6  Humph.  403  ;  Turner  v.  Armstrong,  9 
Yerg.  412  ;  Walden  v.  Valiant,  15  Mo.  409  ;  Thompson  v.  Shelby,  3  Sm.  &  M. 
296.     Contra,  Quarles  r.  Porter,  12  Mo.  76  ;  Huot  v.  Ely,  17  Fla.  775. 

13  King  r.  Vance,  46  Ind.  246  ;  Cleneay  v.  Junction  E.  Co.,  26  Ind.  375  ;  Greg- 
ory V.  Higgins,  10  Cal.  339  ;  Wilson  i'.  Albright,  2  G.  Greene,  125  ;  Commis- 
sioners V.  Fox,  Morris  (la.),  48;  McMillan  v.  Richards,  9  Cal.  418;  Huff  v. 
Mills,  7  Yerg.  42.  See  Moore  v.  Greene,  4  Humph.  299 ;  Thompson  v.  Slielby, 
3  Sm.  &  M.  290;  Cruett  v.  Jenkins,  53  Md.  217,  (overruling  Somerville  v.  Brown, 
5  Gill,  399  ;  and  Stuart  v.  West,  1  Har.  &  J.  536);  McXeill  v.  Roach,  49  Miss. 
436  ;  Kauffman  v.  Jacobs,  49  la.  432  ;  Durham  v.  Payne,  20  La.  An.  145  ;  Dan- 
iels V.  Rawlings,  6  Humph.  403  ;  Harney  v.  Ellis,  11  Sm.  &  M.  348. 

"Sargent  v.  Wood,  51  Vt.  597. 

i£>llill  V.  National  Park  Bank,  47  N.  Y.  Sup'r  Ct.  302. 


§  461       garnishee's  negotiable  instruments.  270 

instrument,  and  had  again  become  a  deposit  account.  It  is 
called  a  "negotiable  instrument"  for  one  purpose,  and  a  "  de- 
posit" for  another.  But  this  case  seems  to  have  been  before 
the  Court  of  Appeals,  where  it  was  held,  that  service  of  gar- 
nishment on  the  maker  would  attach  the  credit  due  the  defen- 
dant, notwithstanding  the  negotiability  of  the  security  by  which 
it  was  evidenced. ^^  When  the  instrument  is  overdue  when  it 
is  assigned,  it  ceases  to  be  affected  by  the  rules  that  govern 
negotiable  paper.^'^ 

§  461.  Conditional  Garnishment  of  Payer  of  Negotiable 
Paper  before  Maturity. — Where  the  debt  sought  to  be  reached 
by  garnishment  is  evidenced  by  a  negotiable  instrument,  and 
it  is  still  held  that  garnishment  will  lie  before  maturity  of  the 
instrument,  it  is  in  some  of  the  States  held  subject  to  certain 
conditions,  which  are  intended  to  preserve  the  rights  of  the  in- 
dorsee for  value,  and  at  the  same  time  protect  the  garnishee 
from  being  required  to  pay  the  same  debt  a  second  time.  One 
of  these,  and  the  least  effectual  and  satisfactory,  is,  that  the  in- 
dorsee, who  has  not  been  made  a  party  to  the  garnishment 
proceeding,  may  arrest  the  payment  of  the  judgment,  or  after 
payment  recover  the  amount  in  an  action  against  plaintiff.^ 
Another  condition  is,  that  the  garnishment  shall  bind  the  party 
summoned,  provided  the  defendant  continues  to  hold  the  paper 
after  service,  until  the  same  becomes  due.  This  would  neces- 
sarily leave  the  judgment  suspended,  so  far  as  it  can  be  made 
to  operate  effectually  against  the  garnishee,  until  the  maturity 
of  the  note,  after  which  it  will  still  depend  upon  an  important 
fact  to  be  ascertained,  {.  e.,  whether  the  defendant  is  still  the 
holder  of  the  instrument.^  While  this  is  unquestionably  fair, 
60  far  as  the  garnishee  is  concerned,  the  effectiveness  of  the 
garnishment  would  depend  so  lai'gely  upon  the  acquiescence  of 
the  defendant,  that  it  could  hardly  be  regarded  as  a  valuable 
remedy. 

16  Bills  V.  Park  Bank,  89  X.  Y.  343. 

17  See  Post,  §  467. 

1  Quarles  v.  Porter,  12  Mo.  76.  See  also  Calcord  v.  Dagget,  18  Mo.  557.  Bat 
see  Punkhouser  v.  How,  24  Mo.  44  ;  Dickey  v.  Fox,  24  Mo.  217.  Since  these 
rulings,  tlie  attachment  law  of  Missouri  has  been  amended  so  as  to  dispense 
with  the  necessity  of  any  such  action  by  the  indorsee. 

2  Enos  V.  Tuttle,  3  Conn.  27. 


271  garnishee's  negotiable  instruments.        §  4G2 

Even  where  the  plaintiff,  in  order  to  protect  the  payer  against 
the  hazards  of  double  payment,  in  consequence  of  an  indorse- 
ment of  negotiable  jiaper,  where  it  was  uncertain  whether  the 
same  would  be  found  at  maturity  in  the  hands  of  defendant, 
offered  to  give  security  to  indemnify  the  garnishee,  the  Court 
in  South  Carolina  refused  to  give  judgment  for  the  plaintiff, 
for  the  reason,  which  seems  good"  and  sufficient,  that  it  would 
be  too  great  a  hardship  to  compel  the  party  to  pay  the  note, 
and  i-esort  to  the  indemnity  in  case  he  should  be  called  upon 
in  the  future  to  pay  It  again. "^  One  can  see  at  a  glance  what 
burdens  would  be  imposed  upon  the  "  disinterested  stakehold- 
er," in  case  he  were  required  to  pay  under  such  circumstances. 
He  has  contracted  but  one  debt,  for  which  he  has  already  been 
forced  into  Court,  when  he  would  have  willingly  paid  it  at  ma- 
turity. After  maturity,  and  any  time  within  the  period  of  lim- 
itation, he  may  be  called  upon  by  one  who  professes  to  be  a 
honafide  holder  to  pay  again,  and  before  he  can  safely  do  so, 
may  find  it  necessary  to  stand  a  second  suit.  After  being 
twice  sued,  and  paying  both  judgments,  together  with  expenses 
and  costs  of  suit,  he  must  still  bring  another  action,  which, 
when  decided  in  his  favor,  will  probably  only  partially  indem- 
nify him. 

§  462.  Gamishmeiit  where  Instrument  has  been  Fraudulent, 
ly  Assigned. — Where  it  appears  that  the  transfer  of  the  nego- 
tiable instrument  is  a  mere  fraudulent  contrivance  to  place  it 
beyond  the  reach  of  creditors,  no  advantage  can  be  gained  by 
such  indorsement,  though  It  be  before  maturity,  unless  the 
note  has  subsequently  passed  to  the  hands  of  a  honafide  hold- 
er. Indeed,  this  seems  rather  a  disadvantage  to  the  payee,  as 
where  the  rule  that  the  payee  cannot  be  charged  as  garnishee 
Is  fully  recognized,  It  Is  nevertheless  held,  that  when  it  is  in  the 
hands  of  a  voluntary  or  fraudulent  indorsee,  the  credit  may  be 
attached  by  garnishment  of  the  maker. ^  And  where  debts  ev- 
idenced by  negotiable  securities  In  the  hands  of  defendant  may 
be  reached  by  garnishment.  It  is  held  that  payment  to  one  who 
is  holding  the  security  In  bad  faith,  for  the  benefit  of  defend- 

SGaffney  v.  Bradford,  2  Bailey,  441. 
iClough  V.  Buck,  6  Neb.  343. 


§  463       garnishee's  negotiable  instruments.  272 

ant,  will  not  protect  the  obligor  so  paying  the  same  after  ser- 
vice of  summons.^  So,  where  the  maker  of  a  promissory  note 
served  with  summons  in  garnishment  before  the  maturity  of  the 
note,  takes  up  the  same  when  due,  by  giving  a  new  note  which 
is  negotiable,  he  will  be  charged  as  garnishee,  even  though 
the  note  given  in  renewal  is  still  in  circulation,  and  the  gar- 
nishee does  not  know  who  owns  it.^  In  a  case  of  this  kind, 
the  garnishee  would  occupy  no  better  position  than  he  would 
had  he  simply  paid  the  note  at  maturity  ;  and  the  only  ques- 
tion would  be  whether  he  was  bound  by  the  garnishment  served 
when  the  original  note  was  outstanding,  and  capable  of  being 
transferred  by  indorsement.  It  seems  that  where  the  note  is 
found  in  the  hands  of  the  payee  at  maturity,  he  being  the  de- 
fendant, the  service  of  process  prior  to  maturity  is  held  defec- 
tive, for  the  purpose  of  charging  the  garnishee  in  Alabama.* 
The  fact  of  assignment,  and  its  bona  Jicles,  when  it  appears  by 
the  answer,  may  be  contested  by  plaintiff,  and  left  to  the  jury.^ 

§  463.  Effect  upon  Rights  of  Indorsees,  of  Notice  of  Gar- 
nishment.— Intimately  connected  with  the  question  whether 
the  indorsee  is  a  holder  of  the  negotiable  instrument  in  good 
faith,  is  the  question  of  notice.  It  may  be  taken  as  quite  gen- 
erally true,  where  the  garnishment  will  be  effective  against 
the  defendant,  so  long  as  he  holds  the  evidence  of  garnishee's 
indebtedness,  whether  the  same  be  negotiable  or  not,  that  it 
will  be  equally  binding  upon  a  purchaser  who  takes  the  instru- 
ment with  knowledge  of  the  attachment,  even  though  he  be 
an  indorsee  for  value. ^  In  some  of  the  cases,  this  doctrine 
may  be  implied  from  the  language  used  in  qualifying  the  state- 
ment, that  the  title  of  an  indorsee  acquired  before  maturity  is 
absolute,  provided  such  indorsee  has  no  notice  of  the  prior  gar- 
nishment.^ But  this  notice,  by  which  the  indorsee  who  acquires 
title  to  the  note  before  maturity  may  be  effected,  must  be  more 

2  Bills  V.  Park  Bank,  89  N.  Y.  343, 

8  Leslie  v.  Merrill,  58  Ala.  322. 

*  Leslie  v.  Merrill,  58  Ala.  322.    See  Post,  §  467. 

6  Fortunes.  State  Bank,  4  Ala. 385. 

1  Culver  V.  Parish,  21  Conn.  408. 

2  Howe  V.  Ould,  28  Gratt.  1  ;  Kieffer  v.  Ebler,  18  Pa.  St.  388  ;  QuarlesT.  Por- 
ter, 1-2  Mo.  76  ;  Cruett  v.  Jenkins,  53  Md.  217. 


273  garnishee's  negotiable  instruments,        §  463 

certain  antl  convincing  than  mere  constructive  notice.  Notice 
cannot  be  imputed  to  such  an  indorsee,  as  a  conclusive  pre- 
sumption. The  doctrine  of  lis  2)endens  does  not  apply  to  him, 
and  lience  he  must  have  actual  notice  of  the  suit.^  This  form 
of  notice  is  probably  farthest  removed  from  notice  which  for 
distinction  is  termed  actual,  of  any  kind  of  constructive  notice 
known  to  the  law.  The  only  fact  upon  which  it  rests  is,  that 
an  action  has  been  commenced,  and  process  regularly  served 
upon  the  defendant.* 

But  there  is  another  kind  of  notice  vv^hich  it  has  been  held 
will  affect  the  rights  of  indorsees  for  value  before  maturity, 
which,  however,  does  not  amount  to  actual  notice.  Tliis  is 
"  notice  of  facts  sufficient  to  put  a  man  of  ordinary  prudence 
upon  inquiry,"^  The  weight  of  authority,  however,  is  decid- 
edly against  holding  the  indorsee  to  be  affected  by  anything  so 
uncertain  and  hypothetical  as  this.  "  The  indorsee  for  value 
cannot  be  affected  by  notice  which  depends  upon  a  mere  pre- 
sumption of  law.^  But  it  must  not  be  understood  that  the 
question  of  notice  is  to  be  arrived  at  only  by  positive,  direct 
testimony.  In  many  of  the  cases  cited,  the  terms  "  actual  no- 
tice," and  "  actual  knowledge  "  are  used  interchangably ;  but 
from  this  it  must  not  be  imagined  that  nothing  short  of  abso- 
lute personal  knowledge,  such  as  would  be  necessary  to  qualify 

'Day  V.  Zimmerman,  08  Pa.  St.  72  ;  Goodman  v.  Simonds,  2  How.  343  ;  ISIims 
V.  West,  38  Ga.  18  ;  Winston  v.  Westfeldt,  22  Ala.  560  ;  58  Am.  Dec.  278  ;  Hill 
V.  Kroft,  29  Pa.  St.  186  ;  Kellogg  v.  Fancher,  23  Wis.  21;  Kieffer  v.  Eliler,  18 
Pa.  St.  388;  County  of  Cass  v.  Gillett,  100  U.  S.  585;  County  of  Warren  v.  Mar- 
cy,  97  U.  S.  106  ;  Murray  v.  Lylburn,  2  Johns  Ch.  441 ;  Mayberry  v.  Morris, 
62  Ala.  113  ;  Be  Great  Western  Tel.  Co.,  5  Biss.  363  ;  Leitch  v.  Wells,  48  N.  Y. 
585  ;  Durant  v.  Iowa  Co.,  1  Woolw.  69  ;  Stone  v.  Elliott,  11  Ohio  St.  252. 

*  Wade  on  Notice,  §  337,  et  seq.,  and  cases  cited. 

5  Gill  V.  Cubitt,  3  Barn.  &  Cres.  466  ;  Pringle  v.  Phillips,  5  Sandf.  157;  Ham- 
ilton V.  Marks,  52  Mo.  78  ;  14  Am.  Rep.  391. 

6  Swift  V.  Tyson,  16  Pet.  1  ;  Goodman  v.  Simonds,  20  How.  343  ;  Bank  of 
Pittsburgh  v.  Neal,  22  How.  96  ;  Murray  v.  Lardner,  2  Wall.  110  ;  Magee  v. 
Badger,  34  N.  Y.  247  ;  Seybel  v.  National  etc.  Bank,  54  N.  Y.  288  ;  13  Am.  Rep. 
58S  ;  Phelan  v.  Moss,  67  Pa.  St.  59  ;  5  Am.  Rep.  402  ;  Lake  v.  Reed,  29  Iowa, 
258  ;  4  Am.  Rep.  209  ;  Worcester  Co.  Bank  v.  Dorchester  Bank,  10  Cush.  488  ; 
Brush  V.  Scribner,  11  Conn.  388  ;  Woolfolk  v.  Bank  of  America,  10  Bu^h,  504  ; 
Hortou  V.  Bayne,  52  Mo.  531  ;  Merrick  v.  Phillips,  58  Mo.  436  ;  Hamilton  v. 
Marks,  63  Mo.  1G7  ;  Morehead  v.  Gilmore,  77  Pa.  St.  118  ;  18  Am.  Rep.  435  ; 
Backhouse  v.  Harrison,  5  Barn.  &  Ad.  1098  ;  Crook  v.  Jadis,  5  Barn.  &  Ad. 
909  ;  Goodman  v.  Harvey,  4  Ad.  &  El.  870  ;  Trieber  v.  Commercial  Bank  etc.> 
SI  Ark.  128  ;  Weit  v.  Thayer,  118  Mass.  473  ;  Swall  v.  Clarke,  51  Cal.  227. 

II.  Attach.— 18. 


§  464        garnishee's  negotiable  instruments.  274 

the  indorsee  to  testify  to  the  pendency  of  the  garnishment  pro- 
ceeding, would  suffice  to  affect  the  security  in  his  hands. 
When  knowledrje,  directly  proven,  will  have  this  effect,  notice 
which  falls  short  of  absolute  knowledge  will  be  equally  effect- 
ive. There  is,  however,  a  difference  in  the  meaning  of  these 
terras,  which,  under  certain  circumstances,  may  require  a  dif- 
ference in  their  application.^  And  whether  it  be  a  question  of 
knowledge  or  one  of  notice,  which  is  to  be  determined,  it  may 
be  arrived  at  by  inference,  but  it  must  be  an  inference  of  fact, 
and  not  of  law.  If  from  other  facts  admitted  or  directly 
proved,  the  triers  of  th^  fact  believe  that  the  indorsee  knew  or 
was  informed  that  an  attachment  suit  was  pending  in  which  the 
payer  of  the  note  or  bill  was  summoned  as  garnishee  in  respect 
to  this  particular  debt,  the  finding  of  the  fact  will  be  supported. 
It  is  a  mere  question  of  evidence.  When  it  is  left  where  it  be- 
longs, as  a  fact  to  be  established,  any  evidence  thereof,  how- 
ever circumstantial  or  inferential  it  may  be,  will  suffice,  pro- 
vided it  be  satisfactory  to  the  minds  of  the  Court  or  jury.^ 
There  is  a  logical  distinction  between  hnowledge  of  facts  suf- 
ficient to  put  a  man  of  ordinary  prudence  upon  inquiry,  and 
knowledge  of  facts  sufficient  to  put  a  particular  person  upon  in- 
quiry, especially  when  the  former  is  appealed  to  as  conclusive 
evidence  that  the  party  in  question  was  a  man  of  ordinary 
prudence  ;  that  as  a  matter  of  fact,  he  was  put  upon  inquiry ; 
that  he  inquired,  and  obtained  the  knowledge  necessary  to 
charge  him  as  a  purchaser  in  bad  faith ;  while  the  latter  is  on- 
ly taken  as  evidence  tending  to  prove  the  ultimate  fact  of  no- 
tice, or  a  willful  avoidance  of  knowledge  of  the  fact  in  ques- 
tion, which  is  the  same  in  effect  as  notice.^ 

§  464.  By  what  Law  the  Negotiability  of  the  Instrument  is 
to  be  Determined. — According  to  the  law  merchant,  all  notes 
and  bills  containing  a  direct  promise  to  pay  a  certain  sum  at  a 

■^  "Wade  on  Notice,  §§  3,  88,  and  cases  cited. 

8  Packwood  v.  Gridley,  39  111.  388  ;  Buckner  v.  Jones,  1  Mo.  App.  538  ;  Ed- 
wards V.  Thomas,  2  Mo.  App.  282  ;  Clerks'  Sav.  Bank  v.  Thomas,  1  Mo.  App. 
367. 

9  Seybel  v.  National  etc.  Bank,  54  N.  Y.  288 ;  13  Am.  Rep.  583 ;  Ayer  v. 
Hutchins,  4  Mass.  370  ;  3  Am.  Dec.  232  ;  Hall  v.  Hale,  8  Conn.  336  j  Howry  v. 
Eppinger,  34  Micli.  29. 


275  gaknishee's  negotiable  instruments.        §  464 

time  which  i.s  fixed  by  the  terms  of  the  contract,  or  may  be 
fixed  by  demand  or  acceptance,  and  which  ai'C  made  payable 
to  the  "  order"  of  the  payee,  or  to  "bearer,"  arc  regarded  as 
negotiable.^  But  this  may  be  regulated  by  statute  of  the  dif- 
ferent States,  and  often  is  so  regulated,  so  that  an  instrument 
whicli  is  negotiable  in  one  State  may  not  be  negotiable  in 
another.  The  question  as  to  what  law  will  determine  the  ne- 
gotiability of  a  particular  instrument  arises  where  it  is  issued 
or  made  payable  in  one  State,  and  is  sought  to  be  enforced  in 
anotlier.  "  Who  may  sue,  is  generally  a  question  of  the  reme- 
dy. *  *  *  And  as  a  general  rule,  if  allowed  by  the  lex  fori,  sen 
assignee  may  sue  In  his  own  name,  although  he  cannot  so  sue 
at  the  place  of  assignment.^  And  if  not  allowed  by  the  lex  fori, 
he  cannot  sue  in  his  own  name,  although  he  might  do  so  at  the 
place  of  assignment.^  But  we  think  this  doctrine  should  not 
be  pushed  farther  than  to  indicate  the  mere  nominal  parties 
to  the  suit,  when  it  Is  purely  a  question  of  remedy.  Thus,  if 
a  note  were  non-negotiable  In  Virginia,  and  could  not  be  there 
indorsed  or  assigned,  yet  If  negotiable  and  actually  indorsed 
in  Kentucky  so  as  to  completely  vest  title  In  the  Indorsee,  the 
holder  would  then  have  an  absolute  right  to  recover  the 
amount,  and  the  lex  loci  contracUis  should  govern."  ^  It  is  also 
laid  down  by  the  author  of  the  foregoing  quotation,  and  sup- 
ported by  authority,  that  the  question  of  whether  a  suit  may 
be  brought  in  the  name  of  the  holder  of  a  note  payable  to 
bearer,  will  generally  be  determined  In  the  negative  in  a  State 
whose  laws  require  Indorsement,  even  where  the  lex  loci  au- 
thorized Its  transfer  by  delivery.^  But  in  respect  to  this  pro- 
ceeding, it  has  been  decided  that  If  the  Instrument  sued  on  were 
negotiable  accordino;  to  the  law  of  the    State   where  it  was 

iSee  1  Dan'l  Negot.  Inst.,  §  1  a;  Odell  v.  Gray,  15  Mo.  342;  55  Am.  Dec.  147; 
International  Bankr.  German  Bank,  71  Mo.  183;  36  Am.  Rep.  463. 

2  Citing  Fors  u. Nutting,  14  Gray,  484;  Pearsall  v.  Dwight,  2  Mass.  84;  3  Am. 
Dec.  35. 

3  Fisk  V.  Brackett,  32  Vt.  798;  Folcott  v.  Ogden,  1 H.  Bl.  135;  Wliarton  Confl. 
Laws,  §  735;  Pars.  N.  &  B.  3G8. 

4  Daniel  on  Negot.  Inst.,  §  883.  Citing  Story  on  Bills,  §  173;  Confl.  Laws, 
354;  Trimbey  u.  Vigmer,  1  Bing.  N.  C.  159;  O'Callaghan  v.  Tliomoud,  3  Taunt. 
82;  Lee  v.  Selleck,  .33  N.  Y.  615;  32  Barb.  522. 

5  Daniel  on  Negot.  Inst.,  §  904.  Citing  Roosa  v.  Crist,  17  111.  450;  Harper  v. 
Butler,  2  Pet.  239. 


§  464       garnishee's  negotiable  instruments.  276 

made  or  negotiated,  tlie  rules  applicable  to  negotiable  instru- 
ments would  be  applied  to  it,  though  it  were  non-negotiable  in 
the  State  where  the  maker  was  summoned  as  garnishee.^ 
Where  a  note  executed  in  Pennsylvania  was  not  negotiable  in 
that  State,  but  was  held  to  be  negotiable  under  the  law  of  the 
State  of  Xew  Yoi'k,  where  it  was  delivered  to  the  payee,  the 
question  of  its  negotiability  was  settled  according  to  the  laws 
of  the  latter  State,  for  the  reason  that  it  there  went  into  effect; 
and  because  it  was  negotiable,  the  maker  could  not  be  held  as 
garnishee  of  the  payeeJ 

But  the  rulings  are  not  uniform,  in  recognizing  the  control- 
ling influence  of  the  law  of  the  place  where  the  contract  was 
made,  as  it  affects  the  negotiability  of  the  instrument.  Xotes 
are  sometimes  made  payable  in  a  State  other  than  the  one  in 
which  they  are  formally  executed  ;  in  which  event  it  is  held  that 
the  law  of  the  place  where  the  instrument  is  made  payable 
governs  the  question  of  negotiability.^  Where  no  place  of 
payment  is  specifically  mentioned  in  the  contract,  it  will  be  re- 
garded as  pav^able  in  the  State  where  it  was  made,  and  for 
this  reason,  such  notes  would  be  held  negotiable  or  not  accord- 
to  the  lex  loci  contractus.  Hence,  where  garnishment  was 
served  on  the  maker  in  Indiana,  and  the  note  was  executed 
and  was  payable  in  Ohio,  where  it  was  negotiable,  it  was  held 
that  garnishment  would  not  lie.^ 

8  Baylies  r.  Houghton,  15  Vt.  626. 

7  Ludlow  V.  Bingham,  4  Dallas,  47;  Green  v,  Gillet,  5  Dajt,  485. 

8  Emerson  v.  Partridge,  27  Vt.  8. 
»  Smith  V.  Blatchford,  2  Ind.  184. 


CHAPTER    XXXVII. 

PRIOR     ASSIGNMENT     OF     GARNISHEE'S     INDEBTEDNESS     AND 
CONTRACTS     AFFECTING     HIS     LIABILITY. 

§  465.    Equitable  assignment  of  clioses  in  action  generally. 

§  466.    Assignment  of  instruments  which  are  not  negotiable. 

§  467.     Overdue  commercial  paper. 

§  468.    Assignment  of  debts  evidenced  by  writing. 

§  469.    Assignment  of  open  accounts,  etc. 

§  470.    Assignment  of  future  indebtedness. 

§  471.    The  importance  to  tlie  debtor  of  notice  of  the  assignment. 

§  472.    When  and  by  whom  notice  should  be  given. 

§  473.    Garnishee's  liability  affected  by  his  contract  relations  with  defendant. 

§  474.    Garnishee's  indebtedness  affected  by  contracts  with  third  petsons. 

§  475.    The  consideration  of  contracts  with  third  persons. 

§  476.  The  contract  must  be  with  party  capable  of  contracting  in  relation  to 
the  subject  matter. 

§  477.    Garnishee's  liability  as  surety  or  guarantor  of  defendant. 

§  478.  "Where  defendant  holds  the  claim  against  garnishee  in  a  representative 
capacity. 

§  470.    Fraudulent  assignments  and  contracts. 

§  480.    The  law  that  determines  the  validity  of  contracts  or  assignments. 

§  481.  Duty  of  the  garnisliee  to  disclose  his  rights  acquired  by  prior  assign- 
ments or  contracts. 

§  482.  The  form  and  substance  of  the  assignment  or  other  contract,  by  which 
garnishee's  liability  may  be  affected. 

§  465.  Equitable  Assignments  of  Choses  in  Action,  generally. — 
In  a  former  chapter  the  effect  upon  the  garnishee's  liability  of  the 
assignment  of  specific  property  in  his  possession  is  considered.^ 
In  discussing  the  effect  of  an  assignment  of  the  debt  owing  by 
the  garnishee,  some  of  tlie  same  ground  w.ill  necessarily  be 
gone  over.  In  order  that  the  liability  may  be  affected  in  any 
degree  whatever,  it  is  necessary  that  it  sliould  take  place  prior 
to  the  service  of  garnishment,  except  where  the  debt  is  evi- 
denced by  a  negotiable  instrument.  The  purchaser  takes  only 
such  title  to  the  chose  in  action  as  the  seller  had  at  his  dispos 
al,  and  holds  it  subject  to  all  the  equities  subsisting  between 
the  original  parties  at  the  date  of  the  transfer.     If  the  debtor 

iAnte,  Ch.  XXXTTT. 


§   465      ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.         278 

has  been  summoned  as  garnishee  of  his  original  creditor  prior 
to  the  transfer,  the  plaintiff  will  be  entitled  to  judgment, 
whether  the  assignee  had  notice  of  the  attachment  or  not.^ 
But  when  the  assignment  is  made  prior  to  the  garnishment, 
the  liability  of  the  garnishee  will  be  affected,  when  he  has  no- 
tice of  the  transfer,  and  the  extent  to  which  such  liability  will 
be  affected  by  notice,  and  when  such  notice  must  be  given,  will 
be  noticed  in  a  subsequent  section.^  It  is  so  well  understood 
that  at  common  law  choses  in  action  are  not  assignable,  so  as 
to  give  the  assignee  a  right  of  action  in  his  own  name,  that  it 
need  only  be  mentioned  here.  The  assignment  could  only  be 
made  with  the  assent  of  the  debtor.  But  Courts  of  Equity 
were  so  far  in  advance  of  the  legislature  in  removing  this  ob- 
struction to  the  transfer  of  title  to  property  of  this  kind,  that 
in  order  to  give  effect  to  such  assignments  they  held  them  to 
authorize  the  assignees  to  use  the  name  of  the  assignors,  in 
maintaining  actions  against  the  debtors.^  The  statutes  of  most 
of  the  States  have  dispensed  with  the  necessity  for  the  substi- 
tution of  names,  by  allowing  actions  to  be  brought  in  all  cases 
in  the  names  of  the  real  parties  in  interest ;  but  still  the  trans- 
fer of  personal  rights,  or  property  not  in  possession  of  the  sel- 
ler, is  called  equitable  assignment.  The  rights  of  the  assignee, 
however,  are  fully  protected  against  the  claims  of  subsequent 
attachers ;  whether  it  be  claimed  under  the  old  equitable  doc- 
trine, and  can  only  be  asserted  in  the  name  of  the  assignor,  or 
by  the  aid  of  the  statute,  the  assignor  has  a  right  of  action  in 
his  own  name.^ 

2 Stevens  V.  Pugh,  12  Iowa,  430;  Sanborn  v.  Little,  3  N.  H.  359  ;  Howe  v. 
Jones,  57  Iowa,  130  ;  Baker  v.  Moody,  1  Ala.  315  ;  Dore  v.  Dawson,  6  Ala.  712. 

'■^  Infra,  §  471. 

*  Blackstone's  explanation  of  a  chose  in  action  embraces  only  such  rights  as 
arise  upon  contract,  exjaress  or  implied.— 2  Bl.  Com.  397.  But  later  authorities 
recognize  rights  of  action  which  spring  from  torts,  as  property  which  is  capa- 
ble of  being  equitably  assigned. — Gillet  v.  Fairchild,  4  Den.  80  ;  North  v.  Tur- 
ner, 9  Serg.  &  R.  244  ;  Jordan  v.  Gillen,  44  N.  H.  424  ;  Griffin  v.  Wilcox,  21  Ind. 
370  ;  Final  v.  Backus,  18  Mich.  218  ;  More  v.  Massini,  32  Gal.  59 ;  McKee  v. 
Judd,  12  N.  Y.  622  :  Rice  v.  Stone,  1  Allen.  5()6  ;  Tome  v.  Dubois,  6  Wall,  548. 

5 Norton  v.  Piscataqua  Ins.  Co.,  Ill  Mass.  532  ;  Burrows  v.  Glover,  10(i  Mass. 
324  ;  Connoly  v.  Cheesborough,  21  Ala.  166  ;  Brackett  v.  Blake,  7  Met.  33c  ; 
Patten  v.  Wilson,  34  Pa.  St.  299  ;  Insurance  Co.  of  Pa.  r.  Plioenix  Ins.  Co.,  71 
Pa.  St.  31  ;  Hudson  v.  McConnell,  12  111.  170  ;  Carr  v.  Waugh,  2«  111.  418  ;  Lam. 
kin  V.  Phillips,  9  Porter,  98  ;  Forepaugh  v,  Ajipold,  17  B.  Mon.  625  ;  Dix  v. 


279  ASSIGNMFNT   OF   GARNISHEE'S    INDEBTEDNESS.    §    4G6 

And  it  is  immaterial  what  form  the  transfer  of  interest  may 
take,  provided  it  be  effectual  for  the  purpose  intended  between 
the  immediate  parties  to  the  transaction,  which  is  the  relin- 
quishment of  the  claim  by  the  assignor  to  the  assignee.  If 
the  party  claiming  the  interest  in  the  chose  in  action,  by  virtue 
of  a  prior  subrogation  to  the  rights  of  the  party  originally  en- 
titled, occupies  a  position  which  is  the  legal  equivalent  of  that 
occupied  by  an  assignee  in  respect  to  the  debt,  his  interests 
will  be  protected.**  They  will  be  fully  recognized  in  the  con- 
test between  the  assignee  as  an  intervening  claimant,  and  the 
plaintiff  in  attachinent,  and  have  been  maintained  by  a  direct 
proceeding  on  the  part  of  the  assignee  against  the  plaintiff, 
who  had  succeeded  in  obtaining  judgment  against  the  gar- 
nishee in  a  proceeding  in  which  the  rights  of  the  assignee  were 
not  adjudicated.'^  Where  the  fact  of  the  prior  transfer  is  dis- 
closed in  the  answer,  no  such  adjudication  can  take  place  so 
as  to  bind  the  assignee,  unless  he  has  been  notified  to  appear 
and  defend  his  Interest.  He  is  still  entitled  to  prosecute  his 
action  against  the  debtor,  who  will  not  be  protected  by  the 
ludgment  against  him  as  garnishee.^  The  assi<xnraent  has  the 
same  effect,  if  made  by  way  of  security  to  a  creditor  of  the 
assignor,  to  the  extent  of  the  demand  thereby  secured,  as 
though  the  interest  were  absolutely  and  Irrevocably  set  over 
to  the  assignee,  but  the  debtor  may  still  be  charged  as  gar- 
nishee in  respect  to  the  surplus.^  Where  the  garnishee  has 
received  an  order  prior  to  service  of  summons  to  pay  the 
amount  of  his  indebtedness  to  another  person  than  his  cred- 
itor, this  has  been  held  sufficient  to  place  the  credit  beyond 
the  reach  of  attachment  by  garnishment,  without  regard  to 
whether  there  was  any  consideration  for  such  order  or  not, 

Cobb,  4  Mass.  508;  Dresser  t;.  McCord,  96  111.  389;  Dehner  v.  Helmbacher 
Mills,  7  111.  App.  47. 

•^Providence  Court  Bank  v.  Benson,  24  Pick.  204;  Green  v.  Gillet,  5  Day, 
485;  Crozier  v.  Sliants,  43  Vt.  478;  Galena  etc.  R.  Co.  v.  Menzies,  26  111.  121; 
Cairo  etc.  R.  Co.  v.  Killenburg,  82  111.  295;  Leland  v.  Sabin,  27  N.H.74;  Block 
V.  Paul  10  Mo.  103;  Beazier  v.  Chappell,  2  Brev.  107;  Legro  v.  Staples,  IG  Me. 
252;  Wakefield  v.  Marston,  3  Mass.  558. 

^  Haynes  v.  Gates,  2  Head.  508. 

«  Simmons  t>.  Guyon,57Ala.  Ill;  Tabor  w.  VanVranken,  39Micb.  793;  Tracy 
V.  McCarty,  12  R.  I.  1G8. 

9  Giles  V.  Ash,  123  Mass.  353. 


§   465      ASSIGN3IEXT   OF    GARNISHEE'S    IXDEBTEDXESS.         280 

foi'  the  reason  that  it  was  an  equitable  assignment  of  the  de- 
mand.''^  Nevertheless,  the  question  .of  consideration  for  as- 
signments of  tliis  kind  may  be  of  leading  importance  in  de- 
termining whether  they  are  fraudulent  or  not.^^  It  has  also 
been  held,  that  the  assignment  of  a  chose  in  action  may  be  ef- 
fected by  an  ordinary  bill  of  exchange  or  order,  whether  the 
same  has  been  accepted  or  not,  provided  it  be  drawn  for  the 
entire  sura  due  the  drawer  ;^^  but  it  is  held  otherwise,  where 
it  is  only  for  a  portion  of  the  debt.^^  If  the  draft  or  order 
is  only  drawn  for  a  portion  of  the  indebtedness,  the  sum  em- 
braced therein  is  not  regarded  as  set  over,  so  as  to  give  the 
payee  a  right  of  action  against  the  drawee,  until  the  latter  has 
accepted  the  bill,'*  and  for  this  reason  it  is  held  not  to  be  an 
equitable  assignment  pro  tanto.^^  The  reason  assigned  by  Mr. 
Justice  Story  for  this  distinction  was  that :  "  A  creditor  shall 
not  be  permitted  to  split  up  a  single  cause  of  action  into 
many  actions,  without  the  consent  of  his  debtor,  since  it  may 
subject  him  to  many  embarrassments  and  responsibilities  not 
contemplated  in  his  original  contract.  lie  has  a  right  to  stand 
upon  the  singleness  of  his  original  contract,  and  to  decline  any 
legal  or  equitable  assignments  by  which  it  may  be  broken 
into  fragments. "^^  The  insufficiency  of  this  reason  is  clearly 
apparent,  where  the  order  for  a  part  of  the  indebtedness  is  in 
the  form  of  a  check  drawn  upon  a  deposit  account  at  a  bank, 
as  the  account  is  kept  in  that  form  for  the  express  purpose  of 
paying  it  out  in  that  manner.  It  is  clearly  what  both  the 
drawer  and  drawee  expect,  and  the  money  would  not  have 
been  placed  in  the  latter's  hands  upon  any  other  understand- 
ing. There  is,  however,  some  conflict  of  authority  upon  this 
question  which  will  be  noticed  hereafter.^''^ 

1"  Adams  v.  Robinson,  1  Pick.  461;  Conway  v.  Cutting,  51  N.  H.  407;  Curie 
V.  St.  Louis  P.  T.  Co.,  12  Mo.  578. 

11  Infra,  §  480. 

12  Gibson  v.  Cooke,  20  Pick.  15;  32  Am.  Dec.  194;  Robins  v.  Bacon,  3  Greenl. 
349;  Roberts  v.  Austin,  26  Iowa,  315;  Mandeville  v.  Welch,  5  Whart.  277. 

13  See  Infra.  §  482. 

"Brill  V.  Tuttle,  81  X.  Y.  457;  37  Am.  Rep.  513;  Christmas  v.  Russell,  14 
"Wall.  84;  Chase  v.  Alexander,  6  Mo.  App.  506. 

15  Bank  of  Commerce  v.  Bogy,  44  Mo.  18. 

16  Mandeville  v.  Welch,  5  \\Tieat.  277.    See  also  Weinstockr.  Bellwood,  12 
Bush.  139;  Gibson  v.  Finly,  4  Md.  Ch.  75;  Paydras  v.  Delamere,  13  La.  98. 

1'  Iii/ra,  §  482. 


281         ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.      §   4G6 

But  in  Cushman  v.  Haynes,^^  it  is  held  that  a  bill  of  ex- 
change drawn  payable  to  the  drawer  or  order  under  certain 
conditions,  could  not  operate  as  an  equitable  assignment. 

§  4G6.  Assignment  of  Instruments  wMcli  are  Not  Negoti. 
able. — The  manner  in  which  an  evidence  of  debt  is  transfer- 
able, so  as  to  divest  the  rights  of  the  assignor,  will  not  deter- 
mine the  question  of  their  negotiability,  according  to  the  strict 
commercial  classification.  "  An  instrument  is  called  nefrotia- 
ble  when  the  legal  title  to  the  instrument  itself,  and  to  the 
whole  amount  of  money  expressed  upon  its  face,  may  be  trans- 
ferred from  one  to  another  by  indorsement  and  delivery  by  the 
holder,  or  by  delivery  alone. "^  But  the  same  learned  author 
whose  language  is  quoted,  says  in  the  following  section  of  his 
treatise  :  "  But  in  a  strictly  commercial  classification,  and  as 
the  term  is  technically  usedf  it  applies  only  to  those  instru- 
ments which,  like  bills  of  exchange,  not  only  carry  the  le^al 
title  with  them  by  indorsement  or  delivery,  but  carry  as  well, 
when  transferred  before  maturity,  the  right  of  the  transferee 
to  demand  the  full  amount  which  their  faces  call  for.  '  Asslo-n- 
able  '  is  the  more  appropriate  term  to  describe  bonds  and  ordin- 
ary notes,  or  notes  of  hand  as  they  are  most  commonly  called, 
as 'negotiable'  is  the  more  fitting  term  to  describe  the  peculiar 
instruments  of  commerce."^  The  liability  of  a  garnishee  as  a 
party  to  an  instrument  technically  called  negotiable,  has  al- 
ready been  considered.^  It  is  the  class  of  instruments  trans- 
ferable in  this  manner,  which  do  not  bear  upon  their  face  the 
direction  to  pay,  or  the  promise  to  pay,  to  the  payee's  "  order," 
or  to  the  "  bearer,"  that  ai'e  considered  herein. 

Notes  and  bills  of  this  class  are  choses  in  action,  and  are  as- 
signable by  the  law  merchant,  which  may.  be  called  the  com- 
mon law  of  commercial  paper,  by  indorsement  and  delivery, 
or  by  delivery  alone.*     In  this  respect  alone,  they  occupy  a 

18  20  Pick.  132. 

1  Daniel  on  Xegot.  Inst.,  §  1. 

2  Daniel  on  Negot.  Inst.,  §  1  a. 

3  Ante,  Ch.  XXXVI. 

*  P.rown  V.  Hull,  33  Gratt.28  ;  McSherry,  v.  Brooks,  46  Md.  118  ;  Baxter  v. 
Little,  G  Mete.  (Mass.)  7  ;  39  Am.  Dec.  707  ;  Powers  v.  Neeson,  19  Mo.  190; 
Britton  v.  Bishop,  11  Vt.  70  :  National  Bank  v.  Texas,  20  Wall.  72. 


§    4G7    ASSIGNMENT   OF    GARNISHEE'S    INDEBTEDNESS.  282 

different  position  from  other  written  or  unwritten  choses  in  ac- 
tion, as  respects  tlie  liability  of  the  garnishee  who  is  the  payer. 
If  the  garnishee,  when  summoned  as  such,  has  given  the  defen- 
dant a  non-negotiable  note  or  bond,  or  has  accepted  a  non-ne- 
gotiable bill,  and  has  no  knowledge  or  information  to  the  effect 
that  it  has  been  transferred  in  the  mean  time,  he  may  answer 
accordinor  to  his  original  indebtedness  ;  and  if  the  matter  stands 
thus  until  the  final  hearing,  may  be  charged  as  garnishee, 
and  the  judgment  rendered  against  him  will  be  a  complete  de- 
fense to  a  subsequent  action  by  one  who  holds  the  instrument 
by  assignment  either  before  or  after  maturity.^  And  it  is  also 
held,  that  the  maker  of  a  promissory  note  of  this  kind  may  be 
garnished  before  the  same  is  due,  with  like  effect,  barring  the 
time  when  payment  can  be  enforced  against  him,  as  though 
the  note  had  reached  maturity  when  he  was  summoned.^ 
But  assignment  prior  to  garnishjpient  gives  the  assignee  a  per- 
fect right  to  payment  of  the  sum  due,  at  maturity.'^ 

§  467.  Over-due  Commercial  Paper. — Notes  and  bills  nego- 
tiable in  form,  that  have  been  dishonored  by  non-payment  at 
maturity,  are  still  assignable  by  indorsement.^  According  to 
the  most  general  signification  of  the  term,  such  paper  is  still 
"  negotiable  ";  but,  according  to  the  commercial  understanding 
of  what  is  meant,  as  given  in  the  next  preceding  section,  it  is 
placed  upon  the  same  footing  as  other  instruments,  assignable 
by  endorsement  or  delivery,  but  not  expressly  made  so  by  the 
instrument  itself.  The  transferee  of  a  negotiable  bill  or  note, 
who  receives  the  same  after  maturity,  takes  nothing  but  the 
actual  title  of  the  party  from  whom  he  receives  it,  and  takes 
that  subject  to  all  equities  subsisting  between  the  maker  and 
any  prior  party,  by  which  the  instrument  was  affected  in  the 

5  King  V.  Vance,  46  Ind.  246  ;  Canaday  r.  Detrick,  G3  Ind.  485  ;  Dore  v.  Daw- 
son, 6  Ala.  712  ;  Covert  v.  Nelson,  8  Blackf .  265  ;  Robinson  v.  Mitchell,  1  Harr. 
365  ;  Clark  v.  King,  2  Mass.  524  ;  Shelter  v.  Thomas,  16  Ind.  223. 

6  King  V.  Vance,  46  Ind.  246. 

'  Newell  V.  Adams,  1  D.  Chipman,  346 ;  Thompson  v.  Shelby,  3  Sm.  &  M. 
296  ;  Wilhelmi  v.  Haffner,  52  111.  222  ;  Walden  v.  Valient,  15  Mo.  409  ;  C.  & 
St.  L.  R.  Co.  V.  Killenburg,  28  111.  295  ;  Wybrants  v.  Rice,  3  Tex.  458  ;  Foster 
V.  Walker,  2  Ala.  177  ;  Foster  v.  Sinker,  4  Mass.  450  ;  Fay  v.  Sears,  111  Mass. 
154. 

1  Davis  V.  Miller,  14  Gratt.  1;  Longu.  Crawford,  18  Md.320;  Morgner  v.  Bige- 
low,  3  Mo.  App.  592;  Graves  v.  Kay,  3  Barn  &  Ad.  313. 


283  ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.      §   468 

hands  of  the  transferer.^  This  applies  to  all  paper  negotiable 
on  its  face,  regardless  of  whether  the  amount  due  thereon  has 
ever  been  demanded  or  not,  or  the  bill  has  ever  been  presented 
for  acceptance,  provided  the  day  of  payment  has  passed.  And 
it  is  also  applied  to  cases  of  bills  of  exchange,  which  have 
been  dishonored  by  a  refusal  to  accept,  where  the  assignee 
has  notice  of  such  refusal.^  The  question  for  consideration 
here  is  :  Plow  is  the  liability  of  the  maker  or  drawer  affected 
by  a  prior  assignment  of  the  instrument,  when  he  is  summoned 
at  the  suit  of  the  payee's  creditor  ?  If  the  garnishee  knows 
that  it  was  dishonored  in  the  hands  of  the  payee,  he  may  an- 
swer as  though  the  paper  were  originally  non-negotiable,  pro- 
vided he  is  not  informed  of  the  assignment.^ 

§  468.  Assignment  of  Debts  Evidenced  by  Writing. — 
Where  the  chose  in  action  assigned  is  a  written  acknowledg- 
ment of  indebtedness,  there  is  every  reason  for  giving  it  a 
standing  somewhat  peculiar  to  the  class  to  which  it  belongs.^ 
The  debtor,  in  making  payment  either  before  or  after  the  ma- 
turity of  the  obligation,  will  naturally  expect  to  find  this  evi- 
dence of  his  indebtedness  in  the  hands  of  his  ci'editor,  where 
it  would  not  ordinarily  be  if  it  had  been  assigned.  But  even 
this  is  not  an  invariable  rule,  as  the  creditor  may  transfer  an 
interest  in  a  debt  evidenced  by  the  debtor's  written  promise, 
so  as  to  make  the  assignment  binding  upon  himself,  without 
parting  with  the  possession  of  the  original  instrument.^  Nev- 
ertheless, when  such  an  obligation  is  still  in  the  hands  of  the 
payee,  the  payer  may  act  upon  the  Vjelief  that  there  has  been 
no  assignment.'^     But  the  question  remains  as  to  what  the  debt- 

2  Daniel  on  Negot.  lust.,  §  724,  a,  Citing  Texas  v.  Hardenburg,  10  Wall.  68; 
Murray  v.  Lardner,  2  Wall.  110;  Smith  v.  Foley,  6  W;ill.  492;  Arents  v.  Com- 
monwealth, 18  Gratt.  750;  Darling  r.  Osborne,  51  Vt.  130;  Davis  v.  Miller,  14 
Gratt.  1;  Clark  v.  Deadrick,  31  Md.  148;  Livermore  v.  Blood,  40  M<>.  48;  Brain- 
ard  K.  Reavis,  2  Mo.  App.  490;  Thomas  v.  Kinsey,  8  Ga.  421;  Barker  v.  Valen- 
tine, 10  Gray,  341:  Flint  v.  Flint,  6  Allen,  34:  Diamond  v.  Harris,  33  Tex.  634; 
Simpson  v.  Hall,  47  Conn.  418;  Scott  v.  First  Nat.  Bank,  71  Ind.  319;  William- 
son V.  Doby,  36  Ark.  689. 

8  0'Keefe  v.  Dunn,  6  Taunt.  305;  Whitehead  v.  Walker,  11  L.  &  J.  Exch. 
168;  Bartlett  v.  Benson,  14  Mees.  &  W.  733. 

4  Story  on  Prom.  Notes,  §  190. 

1  Balderston  v.  Monroe,  2  Cranch  C.  C.  623. 

2Ducarse  v.  Keyser,  28  La.  419  ;  McGee  v.  Riddlesbarger,  39  Mo.  395. 

'Davenport  v.  Woodbridge,  8  Greenl.  17. 


§   469     ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.  284 

or  may  do  in  respect  to  indebtedness  so  evidenced,  when  he 
does  not  know  at  the  time  that  his  original  creditor  is  still  in 
})Ossession  of  the  written  obligation,  and  has  no  positive  infor- 
niation  of  its  assignment.  Might  it  not  be  held,  that  before  he 
could  safely  pay  anything  to  his  original  creditor  it  would  be 
his  duty,  in  the  exercise  of  ordinary  diligence,  to  require  the 
payee  to  exhibit  the  instrument? 

When  summoned  as  garnishee,  at  the  suit  of  a  creditor  of 
his  payee,  he  having  no  notice  of  a  prior  assignment,  it  would 
seem  that  he  should  answer  fully  as  to  how  his  indebtedness 
was  evidenced,  and  so  leave  the  way  open  to  inquiry  as  to 
whether  it  had  been  assigned  prior  to  garnishment.  And  if 
he  should  be  in  possession  of  knowledge  or  information  that  his 
creditor  had  parted  with  the  possession  of  the  written  obliga- 
tion, he  could  not  with  safety  to  himself  withhold  information 
of  this  fact.^ 

§  469.  Assignment  of  Open  Accounts,  etc. — The  transfer  of 
a  claim  which  is  evidenced  by  no  written  acknowledgment  is  as 
complete  between  the  parties  when  the  consideration  is  paid, 
and  the  assignor  sets  over  the  claim  to  the  assignee,  as  it  is 
when  the  subject  of  transfer  is  a  note,  bond  or  bill.  Other 
formalities  may  be  necessary,  in  order  to  give  the  assignee  a 
right  of  action  directly  against  the  debtor.^  The  nature  of 
the  subject  is  extremely  difficult  of  delivery,  so  as  to  make  the 
transaction  complete,  as  between  the  parties,  witliout  a  written 
transfer.  But  any  writing  intended  to  have  tliis  effect,  and 
which  is  sufficiently  expressive  of  such  intent  to  enable  a  ])er- 
son  of  ordinary  understanding  to  gather  its  purport  from  its 
contents,  would  be  sufficient.  A  power  of  attorney  authoriz- 
ing the  collection  and  payment  of  the  debt  to  the  assignee  has 
been  held  sufficient,  for  the  reason  that  it  amounted  in  effect  to 
an  assignment.^  To  the  same  effect  would  be  a  written  au- 
thorization of  the  attorney  to  collect  and  appropriate  the  mon- 

*  See  Fay  v.  Sears,  111  Mass.  154  ;  Supra,  §  466. 

1  Dix  V.  Cobb,  4  Mass.  508  ;  Stevens  v.  Stevens,  1  Aslim.  190  ;  Stockton  v. 
Hall,  Hard.  (Ky.)  160  ;  Gardner  v.  Laehlan,  4  Mylne  &  Cr.  129  ;  Davenport  v. 
"Woodbridge,  8  Me.  17  ;  Johnson  r.  Bloodgood,  IJohns.  Cas.  51 ;  1  Am.  Dec. 
93  ;  Beau  v.  Simpson,  16  Me.  49  ;  Anderson  v.  Van  Allen,  12  Johns.  343. 

2  Watson  V.  Bogaley,  12  Pa.  St.  164  ;  51  Am.  Dec.  595. 


285         ASSIGNMENT   OF   GARNiShee's    INDEBTEDNESS.      §   470 

ey  to  his  own  use.^  Where  the  account  is  made  out,  whether 
from  the  creditor's  books  or  otherwise,  and  an  order  or  written 
direction  to  the  debtor  to  pay  the  same  to  the  assignee,  the  as- 
signment will  be  held  complete.'*  Such  would,  in  general,  be 
the  effect  of  any  order  on  the  debtor  to  pay  the  entire  amount 
of  the  indebtedness,  to  the  assignee. ^  The  transfer  of  interest 
may  also  be  effected  by  a  verbal  direction  to  the  debtor  to  pay 
the  amount  to  the  assignee,  provided  the  latter  assent  to  the 
arrangement.^  The  assent  of  the  assignee  is  essential,  though 
it  need  not  always  be  shown  to  have  been  expressly  given.  If 
he  is  present,  and  hears  the  direction  given  without  objection, 
he  may  be  presumed  to  have  assented  to  the  assignment.^  A 
majority  of  the  cases  contain  the  additional  ingredient  of  the 
debtor's  assent  to  the  assignment.^  But  this  hardly  seems  es- 
sential. Certainly,  he  need  not  assent  in  express  terms.^  The 
most  important  matter  that  concerns  the  debtor  is,  that  he 
shall  be  informed  of  the  assignment.  His  dissent  certainly 
will  not  be  allowed  to  control  the  matter,  unless  by  the  terms 
of  the  contract  there  is  a  positive  restriction  on  the  right  of  the 
creditor  to  assign  the  credit,  without  the  knowledge  and  con- 
sent of  the  obligor. 

§  470.  Assignment  of  Future  Indebtedness.  —  The  assign- 
ment will  be  as  effectual,  when  the  indebtedness  is  not  yet 
due,  as  though  it  were  payable  at  the  time  of  the  transfer,, 
without  reo;ard  to  the  nature  of  the  claim,  or  the  manner  in 
which  it  is  evidenced.^     But  when  the  debt  has  not  yet  ac- 

8  Gerrisli  v.  Sweetser,  4  Pick.  374  ;  People  v.  Tioga  C.  P.,  19  Wend.  73;  "Weed 
V.  Jewelt,  2  ^[etc.  (Mass  )  008. 
*  Robbins  v.  Bacon,  3  Me.  346  ;  Conway  v.  Cutting,  51  N.  H.  407. 

5  .Johnson  V.  Thayer,  17  Me.  401  ;  Adams  v.  Robinson,  1  Pick.  461. 

6  Porter  r.  Bullard,  26  Me.  448  ;  Noyes  v.  Brown,  33  Vt.  431 ;  Putney  v. 
Farnh;iui,  27  Wis.  187 ;  Balliet  v.  Scott,  32  Wis.  187  ;  Lovely  v.  Caldwell,  4 
Ala.  084. 

7  Lovely  i'.  Caldwell,  4  Ala.  684. 

8  Black  V.  Paul,  10  Mo.  103  ;  44  Am.  Dec.  353  ;  Rudd  v.  Paine,  2  Cranch  0. 
C.  9  ;  Hutcluns  »;.  Watts,  35  Vt.  360  ;  Xewby  v.  Hill,  2  Met.  (Ky.)  530  ;  Parton 
V.  Griffin,  72  N.  C  362. 

9  Lovely  v.  Caldwell,  4  Ala.  684. 

1  Of  course,  it  will  be  understood  that  the  right  to  attach  by  garnishment  a 
debt  not  due,  will  not  hasten  the  maturity  of  the  obligation.  Wlien  the  con- 
tract of  the  party  summoned  is  for  a  credit  for  a  specific  time,  the  stipulated 
period  must  elapse  before  the  garnishee  can  be  required  to  pay.  But  see, 
George  v.  Rolls  County,  3  McCreary  C.  C.  181;  Infra,  §  473. 


§    470    ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.  286 

crucd,  but  depends  for  Its  existence  upon  the  completion  of  an 
executory  contract,  of  which  the  contemplated  indebtedness  is 
the  consideration,  its  assignability  is  not  a  mattter  of  course.  A 
mere  possibility  of  future  indebtedness  cannot  be  transferred 
by  assignment,  so  as  to  give  the  assignee  superior  rights  to 
those  of  a  creditor  attaching  by  garnishment,  after  the  fulfill- 
ment of  the  contract  has  created  the  debt.  Thus,  where  a 
party,  in  anticipation  of  securing  a  contract,  made  a  written 
assignment  of  the  sums  to  be  realized  therefrom,  it  was  held 
that  nothing  passed  by  the  assignment,  as  against  a  subsequent 
attaching  creditor,  beyond  what  was  due  at  the  date  of  the  as- 
signment.^ But  where  the  assignor  is  regularly  employed, 
not  only  for  the  present,  but  for  the  future,  his  wages  due  and 
to  become  due  for  services  to  be  rendered  while  engaged  In 
such  employment  may  be  assigned,  and  the  assignee  will  take 
precedence  of  subsequent  attaching  creditors.^  Thus,  where 
one  was  employed  by  a  municipal  corporation,  and  while  so 
employed,  but  before  the  services  were  rendered,  he  drew  an 
order  for  the  full  amount  of  his  compensation  in  favor  of  the 
assignee,  which  order  was  accepted  by  the  mayor  of  the  cor- 
poration, the  assignment  was  held  complete,  and  the  corpora- 
tion could  not  be  charged  as  garnishee  in  respect  to  the  amount 
of  the  agreed  compensation,  after  the  services  of  the  employee 
had  been  rendered.*  When  the  indebtedness  depends  upon 
the  fulfillment  of  a  contract  or  employment  which  the  assign- 
or has  already  entered  into,  or  in  which  he  Is  engaged  at  the 
time  of  the  transfer,  the  objection  of  uncertainty  seems  to  be 
sufficiently  overcome  to  admit  of  the  assignment  of  the  debt 
to  be  created.  But  when  to  this  element  of  doubt  is  added 
the  uncertainty  of  there  being  any  actual  contract  or  employ- 
ment, the  Courts  are  Inclined  to  regard  the  possible  indebted- 
ness as  too  uncertain  to  become  the  subject  of  a  valid  assign- 

2  Mulhall  V.  Quinn,  1  Gray,  105;  Kane  v.  Clough,  36  Mich.  436;  24  Am.  Eep. 
•599. 

3  Kane  v.  Clougli,  36  Mich.  436;  24  Am.  Rep.  599;  "Weed  v.  Jewett,  2  Met. 
Mass.  608;  Hartley  v.  Tapley,  2  Gray.  565;  Van  Saphorst  v.  Pearce,  4  Mass. 
258;  Emery  v.  Lawrence,  8  Cash.  151;  Johnson  v.  Pace,  78  111.  143. 

4  Payne  v.  Mobile.  4  Ala.  333;  37  Am.  Dec.  744.  See  also  Taylor  v.  Lynch,  5 
Gray,  49;  Garland  v.  Harrington,  51  N.  H.  409;  Lannan  v.  Smith,  7  Gray,  150; 
Tucker  v.  Marsteller,  1  Cranch  C.  C.  254;  Wallace  v.  Walter  Haywood  etc. 
Co.,  16  Gray,  209;  Cahill  v.  Bigelow,  18  Pick.  369. 


287         ASSIGNMENT   OF    GARNISHEE'S   INDEBTEDNESS.      §    471 

nient.  Hence,  where  a  janitor  of  a  public  school  building 
made  an  assignment  of  wages  to  be  earned  in  the  future,  it 
was  held  ineffectual,  as  against  the  process  of  garnishment, 
to  pass  the  title  to  wages  earned  under  a  subsequent  appoint- 
ment, for  which  there  was  no  agreement  when  the  assignment 
was  made.^ 

It  seems  also  to  be  held  necessary,  that  to  render  an  assign- 
ment of  wages  to  be  earned  in  the  future  valid  as  security  for 
future  advances,  the  amount  of  such  advances  should  be  spec- 
ified. This  is  the  inference  drawn  from  the  ruling  in  War- 
ren V.  Sullivan,*^  where  it  was  decided  that  where  the  defend- 
ant had  executed  an  assignment  of  the  wages  due,  and  to  be- 
come due,  for  a  certain  term  from  his  employer,  as  security 
for  goods  already  furnished,  and  to  be  furnished,  by  the  gar- 
nishee from  time  to  time  during  the  term  of  such  employment, 
but  to  no  specified  amount,  the  excess  due  from  the  garnishee 
at  the  time  of  service  of  the  writ,  over  the  amount  due  from 
the  defendant  at  the  date  of  assignment,  could  be  held  by  pro- 
cess of  garnishment. 

Where  goods  are  bargained  for,  it  is  held  that  the  transac- 
tion is  not  complete,  so  as  to  create  indebtedness,  until  the 
goods  are  delivered  to  the  purchaser,  and  for  this  reason  the 
bargainee  will  not  be  affected  by  service  of  summons  in  gar- 
nishment prior  to  such  delivery  ;  nor  does  such  service  become 
effectual  by  the  subsequent  delivery  of  the  goods.*"  But, 
under  the  principle  that  allows  the  assignment  of  future  in- 
debtedness, it  would  seem  that  an  assignment  of  indebtedness 
that  would  spring  from  a  sale  which  at  the  time  of  the  trans- 
fer had  only  reached  the  stage  of  a  bargain,  would  be  pro- 
tected as  against  the  subsequent  garnishment  of  the  debtor.^ 

§  471.  The  Importance  to  the  Debtor  of  Notice  of  the  As- 
signment.— The   purpose  subserved   by  giving  notice  to  the 

6  Eagan  v.  Luby,  133  Mass.  543. 

6  123  Mass.  283. 

■?  Hitchcock  V.  Miller,  48  IMich.  G03.    See  Hopson  v.  Dinan,  48  Mich.  612. 

*  In  Massachusetts,  there  is  a  statute  requiring  the  assignment  of  future 
earnings,  to  be  effectual  against  garnishment,  to  be  recorded;  and  it  is  held 
that  board  furnished  to  sailors  by  agreement  with  a  third  person,  comes  with- 
in tlie  meaning  of  tliis  statute. — Jason  v,  Antone,  131  Mass.  534;  Mansard  v. 
Daily,  114  Mass.  408. 


§    471    ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.  288 

debtor,  of  the  assignment  of  a  chose  In  action,  is  to  impose  up- 
on him  the  obligation  to  pay  to  the  assignee  instead  of  to  his 
original  creditor.^     After  receiving  notice,  the  debtor  cannot 
discharge  any  portion  of   his  indebtedness,  nor  acquire  a  rio-ht 
that  will  be  a  valid  set-ofP  or  defense  thereto,  as  against  the 
assignor .2     Prior  to  such  notice,  however,  although  the  assign- 
ment has  been  made,  the  debtor  will  be  protected  in  makin<T 
payments  in  good  faith,  either  in  whole  or  in  part,  to  his  orig- 
inal  creditor.^     In   Clodfelter  v.    Cox,^  it   is   held,  following 
English  in  preference  to  American  authorities,  that  the  assign- 
ment was  not  complete,  as  between  the  assignor  and  the  as- 
signee, until  such  notice  was  given.      But  this  position  cannot 
be  maintained,  either  upon  principle  or  authority.      When  the 
assignor   has  parted  with   his   property  in  a  chose  in  action, 
whatever  rights  his  creditors  may  have,  it  is  clear  that  he  can- 
not have  any  right  to  resume  proprietary  dominion  over   the 
subject  of  transfer,  merely  because  the  assignee  has  not  given 
notice  to  the  debtor.     The  object  of  the  notice  is  to  inform  the 
debtor  that  his  creditor  has  devested  himself  of  all  interest  in 
the   chose   in  action,  and   authorized   the  debtor   to  pay  the 
amount  of  his  indebtedness  to  the  assignee.^     Where  the  con- 
tract which  is  the  foundation  of  the  liability  contains   stipula- 
tions to  the  effect  that  transfers  must  not  only  be  with  the 
knowledge  but  with  the  assent  of  the  obligor,  the  assignment 
may  well  be  held  to  depend  upon  notice.     Such  stipulations 

1  Jones  V.  Witter,  13  Mass.  304. 

2  Fanton  v.  Faircliilcl  Co.  I5ank,  23  Conn.  485  ;  Jones  v.  "Witter,  13  Mass.  304; 
Raymond  w.  Squire,  11  Johns.  47;  Small  u.  Browiier,  11  B.  Mon.  212;  Pollard 
V.  Somerset  etc.  Ins.  Co.,  42  Me.  221 ;  Fay  v.  Jones,  18  Barb.  340  ;  Succession 
of  Risley,  11  Eob.  (La.) 298  ;  Noble  v.  Thompson  Oil  Co.,  79  Pa.  St.  354  ;  21  Am. 
Eep.  66  ;  Crayton  v.  Clark,  11  Ala.  787;  Colvin  v.  Rich,  3  Port.  175  ;  Pitts  v. 
Mower,  18  Me.  361 ;  36  Am.  Dec.  727;  Walters  v.  Washington  Ins.  Co. ,  1  Iowa, 
404  ;  Prescott  v.  Hull,  17  Johns.  284  ;  Larrabee  v.  Knight,  69  Me.  320. 

3 Murray  v.  Lylburn,  2  Johns.  Ch.  441  ;  Livingston  v.  Dean,  2  Johns.  Ch.  479; 
Davis  V.  Barr,  9  Serg.  &  R.  137;  Mangles  v.  Dixon,  3  H.  L.  Cas.  703  ;  Life  Ins. 
Society  v.  Pooly,  5  Jur.  N.  S.  129  ;  Faull  v.  Tinsman,  36  Pa.  St.  108;  Bartlett  v. 
Pearson,  29  Me.  9  ;  Richards  v.  Griggs,  16  Mo.  416  ;  51  Am.  Dec.  240;  McCoid 
V.  Beatty,  12  Iowa,  299. 

*l  Sneed,  330  ;  00  Am.  Dec.  157. 

s  Gardner  v.  Lachlan,  4  Mylne  &  Cr.,  129  ;  Hackett  v.  Martin,  8  Me.  77;  Dav- 
enport u.  Woodbridge,  8  Me.  17;  Johnson  v.  Bloodgood,  1  Johns.  Cas.  51 ;  1 
Am.  Dec.  93  ;  Bean  v.  Simpson,  16  Me.  49  ;  Anderson  v.  Van  Allen,  12  Johns. 
343. 


289         ASSIGNMENT   OF   GARNISnEE'S    INDEBTEDNESS.       §    471 

are  frequently  contained  in  policies  of  insurance,  and  ai'e  gen- 
erally held  to  bo  binding  upon  the  parties.^ 

The  doctrine  herein  declared,  and  the  authorities  cited  in 
support  thereof,  go  to  the  question  In  its  most  general  aspect, 
and  apply  alike  to  the  effect  of  notice  upon  the  debtor,  and 
those  who  claim  under  garnishment  as  creditors  of  the  cred- 
itor; for  such  creditors  stand  upon  no  better  footing  in  respect 
to  the  assignment  than  woidd  their  own  immediate  debtor, 
except  in  so  far  as  they  ai'c  ignorant  of  the  transfer,  of  which 
he  is  fully  informed.  If  the  garnishee  has  no  notice  or  infor- 
mation of  the  fact,  that  the  chose  in  action  has  been  assigned, 
he  may  answer  according  to  his  relations  with  the  d(?fendant 
in  attachment,  and  if  the  matter  goes  to  judgment,  his  pay- 
ment will  exonerate  him  J  But  if  he  has  such  notice  or  infor- 
mation, his  failure  to  disclose  it,  and  the  consequent  judgment 
against  him  as  garnishee,  will  be  no  protection  against  a  sub- 
sequent action  by  the  assignee.^  This  doctrine  applies 
without  question  to  the  assignment  of  book  accounts,  and  all 
debts  of  a  like  character,  which  are  not  assi";nable  accordlno* 

7  CD  O 

to  the  law  merchant,  or  under  express  provision  of  the  statute, 
by  endorsement.  But  when  the  debt  is  evidenced  by  a  bond, 
bill  or  note,  against  which  the  debtor  can  only  offer  in  defense 
equities  subsisting  at  the  time  of  the  transfer,  there  are  cer- 
tain difficulties,  to  which  we  have  already  directed  the  reader's 
attention.^  It  is  intimated  by  Judge  Drake,  that  the  assignment 
of  debts  evidenced  by  bond,  bill  or  note  is  complete  by  the 
assignment  of  the  paper  evidence  of  debt,  and  for  this  reason 
notice  is  not  necessary. ^'^  But  it  may  be  said  with  equal  ac- 
curacy, that  notice  is  not  necessary  to  the  assignment  in  any 
case,  though  it  is  admitted  to  be  necessary  in  order  to  affect 
the  debtor,  and  render  him  liable  to  the  assignee.     If  the  in- 

^Hobbs  V.  Memphis  Ins.  Co.,  1  Sneed,  444  ;  Grosvenor  v.  Atlantic  Fire  Ins. 
Co.,  17N.  Y.  391. 

■'Tudor  V.  Perkins,  3  Day,  364  ;  Dodd  v.  Bratt,  1  Minn.  270  ;  McCoid  v.  Beat- 
ty,  12  Iowa,  299  ;  Dix  v.  Cobb,  4  Mass.  508  ;  Golson  v.  Powell,  32  La.  An.  521. 

8  Nugent  V.  Opdyke,  9  Rob.  (La.)  453  ;  Lamkint\  Phillips,  9  Port.  98  ;  Cray- 
ton  r.  Clark,  11  Ala.  787;  Fowler  v.  Williamson,  52  Ala.  IG  ;  Foster  v.  White, 
9  Port.  221 ;  Bunker  v.  Gilmore,  40  Me.  88  ;  Large  v.  Moore,  17  Iowa,  258  ;  Page 
V.  Thompson,  43  N.  H.  373  ;  Kimborough  v.  Davis,  34  Ala.  583. 

^  Supra,  §4()8. 
i»  Drake  on  Att.,  §607. 
II.  Attach.— 19. 


§   472    ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.  290 

ference  to  be  drawn  from  the  distinction  made  between  debts 
evidenced  by  bond,  bill  or  note,  and  book  accounts,  or  those 
due  by  judgment,  is  that  the  assignee  of  the  former  would  not 
be  prevented  from  recovering,  by  a  payment  made  to  the  as- 
signor, after  assignment,  but  prior  to  notice  thereof,  and  that 
the  holder  of  the  latter  would  be  affected  by  such  payment, 
the  authoi*'s  statement  runs  counter  to  some  of  the  authorities.^^ 
The  transferee  in  one  case  as  well  as  the  other,  at  common 
law,  would  sue  in  the  name  of  the  original  creditor ;  it  is  an 
equitable  assignment,  and  the  assignee  holds  it  subject  to  the 
same  equities  and  defenses,^^  except  where  the  distinction  is 
made  l)y  statute.  Mr.  Daniels  lays  it  down  that  "  the  par- 
ty who  becomes  a  transferee  of  such  instruments  takes  only 
the  right  and  title  of  his  transferrer — can  sue  only  in  the  name 
of  such  transferrer — and  is  subject  to  all  set-offs,  equities  and 
other  defenses  which  might  have  been  pleaded  against  him  up 
to  the  time  when  the  debtor  first  receives  notice  of  the  assign- 
ment.  As  soon  as  a  transferee  receives  such  an  instrument,  he 
should  therefore  notify  the  debtor,  in  order  to  protect  himself."^^ 
Of  course,  if  the  absence  of  notice  of  the  assignment  is  suffi- 
cient protection  to  the  debtor  in  making  a  voluntary  payment 
to  his  creditor,  his  being  summoned  as  garnishee,  and  required 
to  make  such  payment  after  judgment  against  him,  would  pro- 
tect him  to  the  same  extent. 

§  472.  When  and  By  Whom  Notice  should  be  Given. — But 
the  notice  by  which  the  garnishee  would  be  affected  in  fixing 
his  liability  to  the  assignee,  need  not  be  given  in  any  particu- 
lar form  of  words.  The  object  of  notice  being  merely  to  convey 
information  to  the  debtor,  it  is  sufficient  for  all  purposes  if  the 
knowledge  or  information  comes  to  him  in  a  manner  sufficiently 
explicit  to  convince  him  that  a  transfer  has  taken  place. 
Where  the  debtor  has  knowledge  of  facts  which  are  Inconsist- 
ent with   the  continuance  of  ownership  of  the  chose  in  action 

11  Murray  v.  Lylburn,  2  Johns.  Ch.  441 ;  Livingston  v.  Dean,  2  Johns.  Ch. 
479  ;  Davis  v.  Barr,  9  Serg.  &  R.  137  ;  Faull  w .  Tinsman,  36  Pa.  St.  108  ;  Mangles 
V.  Dixon,  3  H.  L.  Cas.  703. 

12  Comstock  V.  Farnum,  2  Mass.  96;  Hatch  v.  Dennis,  10  Me.  244. 

13  Daniel  on  Negot.  Inst.,  §  742,  citing  Davenport  v.  Woodbridge,  8  Greenl. 
17  ;  Corser  v.  Craig,  1  Wash.  C.  C.  424  ;  Bishop  v.  Holcomb,  10  Conn.  444. 


291         ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.       §    472 

by  his  original  creditor,  he  may  be  presumed  to  have  had  no- 
tice of  its  transfer  to  another  person.  Thus,  where  the  debt  is 
evidenced  by  a  note,  bill,  or  bond,  which,  though  non-negotia- 
ble, is  usually  delivered  to  the  assignee,  and  it  can  be  shown 
that  the  debtor  knew  that  his  creditor  no  longer  had  possession 
of  the  evidence  of  debt,  but  that  it  had  passed  to  the  posses- 
sion of  another,  this  might  well  be  considered  as  evidence  of  the 
fact  that  the  debtor  was  advised  of  the  assignment.^  Nor  is  It 
essential,  in  order  to  bind  the  debtor,  that  he  should  have  re- 
ceived notice  of  the  assignment  of  a  chose  in  action,  prior  to 
the  service  of  summons  In  garnishment,^  nor  even  that  he 
should  be  so  notified  prior  to  his  answer  In  the  proceeding. 
When  he  Is  notified  after  answering,  that  notes  which  he  ad- 
mitted owing  defendant  were  assigned  before  garnishment,  it 
becomes  his  duty  to  amend  his  answer,  at  any  time  prior  to 
judgment,  so  as  to  bring  such  assignment  to  the  attention  of 
the  Court ;  and,  in  case  of  failure  to  do  so,  he  will  not  be  pro- 
tected by  the  judgment  against  an  action  by  the  assignee.^ 
When  the  answer  declares  that  the  notes  or  other  evidences  of 
debt  were  assigned  prior  to  garnishment,  judgment  cannot,  in 
general,  be  rendered  against  the  garnishee,  without  affording 
the  assignee  an  opportunity  to  appear  In  the  action.*  The 
question  raised  between  the  garnishee  and  the  plaintiff,  or  be- 
tween the  assignee  and  the  garnishee,  as  to  the  propriety  of 
the  payment  made  In  the  one  case,  or  the  admission  of  indebt- 
edness In  the  other,  as  affected  by  the  notice,  is  mainly  one  of 
good  faith.  The  notice,  as  regards  Its  effect  upon  the  gar- 
nishee, is  governed  by  none  of  the  technical  rules  respecting 
its  regularity  that  apply  to  the  summons.  It  Is  merely  a  ques- 
tion of  information,  conveyed  to  the  party  to  be  affected  In 
such  a  manner,  and  by  such  means,  and  at  such  a  time  as  will 
serve  to  convince  his  mind.     Hence,  It  was  very  properly  held 

1  Hackettw.  Martin,  8  Me.  77;  Davenport  v.  Woodbridge,  8  Greenl.  17;  Buck- 
ley V.  Garrett,  47  Pa.  St.  204. 

2  Tabor  v.  Van  Vranken,  39  Mich.  793;  Stevens  v.  Stevens,  1  Ashm.  190; 
Stockton  V.  Hall,  Hard.  IGO;  Smith  v.  Sterritt,  24  Mo.  260. 

3  LouJs  V.  Dunlop,  57  Miss.  130;  Tracy  v.  McGarty,  12  R.  1. 168;  Pellman  v. 
Hart,  1  Pa.  St.  263;  Northam  v.  Cartwright,  10  R.  I.  19;  Crayton  v.  Clark,  11 
Ala.  787. 

*  Simons  v.  Guyon,  57  Ala.  111. 


§    473    ASSIGNMENT   OF    GARNISHEE'S    INDEBTEDNESS.  292 

in  Vermont,  tliat  information  of  an  assignment  coming  to  a  gar- 
nishee on  Sunday  would  be  as  effective  as  though  it  had  been 
communicated  on  a  secuhir  day.^  The  only  purpose  for  which 
the  question  of  time  can  be  raised  is,  to  determine  whether  the 
the  fjarnishee  received  information  of  the  assiixnraent  in  time 
to  take  advantage  of  it  before  judgment.^  This  is  the  doctrine 
which  seems  to  be  accepted  by  the  Courts  of  most  of  the  States ; 
but  in  two,  at  least,  it  is  held  that  the  attachment  will  prevail 
where  service  is  made  prior  to  notice  of  assignment,  even 
where  the  notice  is  given  prior  to  judgmentJ 

Ordinarily,  the  notice  will  come  directly  or  indirectly  from 
the  assignee  himself,  for  the  reason  that  he  is  the  one  most  in- 
terested in  having  the  information  conveyed  to  the  garnishee. 
In  any  event,  Avhen  the  notice  comes  from  this  source,  it  will 
be  regarded  as  sufficiently  direct  to  require  the  debtor,  when 
summoned  as  garnishee,  to  disclose  the  information  so  received.^ 
But  it  cannot  be  safely  stated  that  the  notice  to  be  effective 
must  come  from  the  assignee.  The  information,  coming  from 
what  source  soever  it  may,  will  be  withheld  by  the  garnishee 
at  his  peril.  He  is  not  called  upon  to  determine  the  truth  of 
the  information,  and  hence,  should  not  look  narrowly  into  ita 
source.  ^  If  he  has  been  sued  by  one  who  claims  to  be  an  as- 
signee of  the  claim  against  him,  this  would  be  regarded  as  no- 
tice of  the  asslgnment.^*^ 

§  473.  Garnishee's  Liability  Affected  by  Ms  Contract  Relations 
with  Defendant. — When  the  party  is  summoned  as  garnishee 
in  respect  to  his  indebtedness  to  defendant,  his  liability  may 
be  materially  affected  by  prior  contracts  between  himself  and 

5  Crozier  v.  Shants,  43  Vt.  478. 

6  Muir  V.  Schenck,  3  Hill  (X.  Y.),  228;  38  Am.  Dec.  633;  Dix  v.  Cobb,  4  Mass. 
508;  Northam  v.  Cartwriglit,  10  It.  I.;  Oldham  v.  Ledbetter,  1  How.  (Miss.)  43; 
26  Am.  Dec.  690;  Colvin  v.  Rich,  3  Port.  175;  Cross  v.  Haldeeman,  15  Ark.  200. 

'  Ward  V.  Morrison,  25  Vt.  593;  Bishop  v.  Holcombe,  10  Conn.  444;  Judah  v. 
Judd,  5  Day,  534;  Van  Buskirk  v.  Hartford  F.  I.  Co.,  14  Conn.  141;  36  Am. 
Dec.  473. 

8  Bank  of  St.  Mary  v.  Morton,  12  Rob.  La.  409. 

9  Smith  I'.  Blatchford,  2  Ind.  184;  Stubblefield  v.  Haggerty,  1  Ala.  38;  Foster 
V.  Walker,  2  Ala.  177;  Wicks  v.  Br&ncb  Bank,  12  Ala.  594;  Fay  v.  Sears,  111 
Mass.  154;  Born  v.  Staaden,  24  111.  320;  Wilbelmi  v.  Haffner,  52  111.  222. 

10  Stubblefield  v.  Haggerty,  1  Ala.  38. 


293        ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.      §   473 

his  creditor  ;  and  where  such  contracts  are  not  tainted  with 
fraud,  they  will  not  be  disturbed  by  the  garnishment.  If  In 
consequence  of  any  such  prior  contracts,  the  garnishee  has 
acquired  a  right  or  credit  against  his  creditor,  which  might 
be  used  as  a  set-off  to  an  action  against  him.  It  may  be  set  off 
to  the  same  extent  to  any  judgment  against  him  as  garnishee.-^ 
Where  the  defendant  had  contracted  to  paint  a  house  for 
the  party  summoned  as  garnishee,  and  failed  to  pay  his 
workmen,  whereby  a  mechanic's  Hen  was  created  In  favor 
of  the  workmen,  It  was  held  that  the  garnishee  could  not  be 
charged  In  respect  to  the  amount  withheld  by  him  to  satisfy 
said  Hen,  after  paying  the  balance  due  under  the  contract.^ 
The  Hen  stlfi  continues  in  favor  of  the  workmen,  and  the 
garnishee  has  a  valid  claim  to  so  much  of  the  contract  price 
as  Is  necessary  to  pay  and  discharge  It.  This  claim  cannot 
be  Ignored,  as  It  stands  upon  as  high  ground  as  though  the 
garnishment  were  In  respect  to  property  upon  which  the 
garnishee  held  a  llen.^  Where,  by  the  terms  of  the  contract, 
the  Indebtedness  of  the  garnishee  depended  upon  the  approval 
of  the  transaction  by  his  son,  and  the  son  refused  his  sanc- 
tion, there  could  be  no  judgment,  as  for  an  absolute  debt.* 
And  where  an  agreement  was  made  between  the  defendant 
and  garnishee,  that  the  former  would  work  for  the  latter 
in  consideration  of  support  for  himself  and  family,  and  that 
in  case  the  value  of  defendant's  labor  amounted  to  more  than 
the  cost  of  such  support,  the  surplus  should  be  applied  to 
the  payment  of  certain  debts  of  the  defendant,  It  was  held 
that  such  agreement  was  not  fraudulent  as  to  creditors,  and 
the  garnishee  could  not  be  charged  because  of  his  advancing 
the  defendant  money  to  pay  the  latter's  debts,  after  the  service 
of  summons  In  garnishment,  such  advance  not  being  made  In 
payment  of  any  Indebtedness  of  garnishee  to  defendant,  which 
was  in  existence  at  the  time.  The  garnishee,  not  being  In- 
debted to  the  principal  defendant,  could  pay  him  for  services 
yet  to  be  rendered,  without  Incurring  any  obligation  to  the 

1  Mowry  v.  Davenport,  6  Lea.  80;  B^nk  v.  Levy,  1  McMullen,  431. 

2  Hitchcock  V.  Lancto,  127  Mass,  514. 

3  Hawthorne  v.  Unthank,  52  la.  607. 
*  Bell  V.  Jones.  17  N.  H.  307. 


294 

jilalntlff.^  So  one  was  In  the  employ  of  a  copartnership,  with 
members  of  which  he  made  a  contract  for  steady  employment, 
and  from  whom  he  agreed  to  purchase  a  lot  of  land,  to  be  paid 
for  by  installments  of  his  wages  until  a  certain  sum  was  paid. 
After  several  installments  had  been  paid  as  agreed  upon,  the 
partners  were  summoned  as  garnishees  of  their  employee,  and 
it  was  held,  that  no  fraud  appearing  in  the  agreement,  and  it 
appearing  also  that  the  employee  had  been  paid  in  full  by  the 
firm  for  his  labor  up  to  the  time  of  service  of  summons,  they, 
nor  either  of  them,  could  be  charged  as  garnishee.^ 

AYhere,  according  to  the  terms  of  the  contract  between  the 
garnishee  and  the  defendant,  the  debt  from  the  former  is  not 
due  at  the  time  of  the  service  of  the  writ,  the  maturity  of  the 
obligation  is  not  thereby  exjsedited,  although  the  amount  ow- 
mg  may  be  attached  by  garnishment  before  it  becomes  dueJ 
But  any  contract  as  to  the  time  for  which  the  credit  is  given, 
or  any  other  stipulation  contained  in  such  contract,  to  affect 
the  garnishee's  liability,  must  be  a  binding  contract,^  and  not 
open  to  the  objection  of  Illegality.  Thus,  funds  were  collected 
by  a  county,  by  taxation,  to  pay  Interest  on  certain  outstand- 
ing county  bonds.  Litigation  subsequently  arose  as  to  the 
validity  of  the  bonds,  and  the  legislature  passed  an  act  author- 
izing the  county  to  loan  the  fund  so  collected,  but  specified  no 
time  for  which  loans  might  be  made.  A  loan  was  made  for 
four  years ;  but  before  the  expiration  of  that  time  the  bond- 
holders recovered  judgment  against  the  county,  and  the  bor- 
rower was  summoned  as  garnishee.  The  answer  set  up  that 
the  debt  was,  under  the  terms  of  the  contract,  not  due  until  the 
expiration  of  the  four  years  ;  but  the  Court  held  that  the  act 
of  the  legislature  only  authorized  loans  to  be  made  subject  to 
call,  or  until  the  litigation  was  concluded,  as  otherwise  It  would 
Impair  the  obligation  of  the  county's  contract  with  the  bond- 
holders, and  that  the  garnishee  was  presumed  to  know  the 
law.     He  was  accordingly  held  liable,  to  the  amount  loaned 

5  Wortliington  v.  Jones,  23  Vt.  546  ;  Mines  v.  Pyle,  4  Houst.  646  ;  Callagan  v. 
Pocasset  jNIan.  Co.,  119  Mass.  173.       t 

6  Wart  V.  Mann,  124  Mass.  586  ;  Mason  v.  Ambler,  6  Allen,  124. 
'Potter  V.  Cain,  117  Mass.  238. 

«  Duncan  v.  Berlin.  60  N.  Y.  151. 


295         ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.       §   473 

and  the  unpaid  interest  thereon.^  If  the  contract  between 
garnishee  and  defendant  is  that  tlie  former  shall  pay  in  any- 
thing else  than  money,  to  hold  him  as  a  debtor  would  be  to 
ignore  the  terms  of  the  contract,  and  compel  him  to  pay  in 
money.  This  the  summons  in  garnishment  will  not  accom- 
plish. If  there  is  an  agreement  between  the  parties,  that  one 
of  them  shall  supply  the  other  with  work  and  materials,^*'  or 
with  commodities  of  any  kind,^^  the  party  so  agreeing  cannot 
be  held  as  the  debtor  of  the  other,  and  compelled  to  pay  the 
value  of  such  work  and  materials  or  other  commodities  in 
money. ^^  So  where  the  contract  was  that  payment  should  be 
made  in  promissory  notes,  it  was  held  that  by  gai-nishment  the 
debtor  could  not  be  compelled  to  satisfy  the  demand  in  any 
other  manner. ^^  And  where  the  principal  defendant  gave  his 
services  at  a  fixed  salary,  of  which  he  was  only  to  draw  a  sum 
sufficient  for  the  support  of  himself  and  family,  and  the  bal- 
ance was  to  be  applied  to  the  extinguishment  of  a  debt  due 
from  the  defendant  to  the  party  summoned  as  garnishee,  it 
was  held  that  the  process  would  not  prevent  the  employer  from 
paying  a  reasonable  amount  for  the  necessary  expenses  of  the 
employee's  family,  and  applying  the  residue  according  to  the 
contract.^*  The  contract  may  be  to  pay  wages  in  advance, 
and  the  amount  cannot  be  reached  by  garnishment,  which 
would  be  in  effect  the  attachment  and  foi'ced  sale  of  the  debt- 
or's personal  services — condemning  him  to  involuntary  servi- 
tude for  the  payment  of  his  debts. -^^  And  it  has  even  been 
held  that  one  may  agree  to  labor  for  another,  leaving  it  option- 
al with  the  employer  whether  he  will  pay  or  not,  and  in  that 
way  avoid  the  creation  of  indebtedness  that  can  be  reached  by 

9 George  v.  Ralls  County,  3  McCreary  C.  C.  181. 

1"  Wrigley  v.  Geyer,  4  Mass.  102  ;  Bartlet  v.  "Wood,  32  Vt.  372 ;  Cherry  v. 
Hooper,  7  Jones,  82  ;  Russell  i-.  Convers,  7  N.  H.  343. 

"Mn:Minu  v.  Hall,  2  Tenn.  528  ;  Blair  v.  Rhodes,  5  Ala.  648. 

i^Smith  ».  Davis,  1  AYis.  447;  60  Am.  Dec.  390  ;  Blackburn  v.  Davidson,  7  B. 
Mon.  101  ;  Willard  v.  Butler,  14  Pick.  550  ;  Aldrich  v.  Brooks,  25  N.  H.  241. 

13  Fuller  r.  O'Brien,  121  Mass.  422  ;  Smith  v.  Chapman,  6  Port.  365  ;  "Weil  v. 
Tyler,  38  Mo.  545  ;  Mims  v.  Parker,  1  Ala.  421  ;  Jennings  v.  Summers,  7  How. 
(Miss.)  453  ;  Marshall  v.  Grand  Gulf  etc.  Co.,  5  La.  An.  360.  Contra,  Louder- 
man  r.  Wilson,  2  Har.  &  J.  379. 

i^Hall  V.  Magee.  27  Ala.  414. 

15  Mines  v.  Pyle,  4  Houst.  646  ;  "Wortbington  v.  Jones,  23  Vt.  546  ;  Callagan 
V.  Pocasset  Man.  Co.,  119  Mass.  173. 


§   473     ASSIGNMENT   OF    GARNISHEE'S    INDEBTEDNESS.  296 

garnislimcnt.  Tims,  where  one  entered  the  employment  of  a 
company,  and  signed  a  contract  that  the  employer  might  pay 
his  wages  at  such  times  and  in  such  parts  as  it  might  elect, 
until  the  expiration  of  thirty  days'  notice  of  the  employee's  in- 
tention to  quit  the  employment ;  and  that,  should  he  leave 
without  giving  such  prior  notice,  his  wages  should  be  forfeit- 
ed, the  contract  was  held  valid,  and  until  it  was  broken  by  the 
company,  the  defendant  would  have  no  right  of  action  for  any 
arrears  of  wages,  until  after  the  expiration  of  the  stipulated  no- 
tice, and  hence  the  company  could  not  be  summoned  as  gar. 
nishee.'*'  Where  garnishee  has  entered  into  an  agreement 
with  the  principal  defendant,  to  pay  the  hitter's  debts,  in  sat- 
isfaction of  the  demand  which  is  sought  to  be  reached  by  gar- 
nishment, he  cannot  be  charged  in  respect  to  such  demand 
until  he  has  violated  the  terms  of  his  agreement.^'  Contracts 
that  one  for  whom  work  is  to  be  done  may  withhold  from  the 
contractor  a  portion  of  the  agreed  sum,  to  pay  the  laborers 
employed,  are  generally  looked  upon  with  special  favor,  and 
the  party  from  whom  the  contract  price  is  due  cannot  be 
charged  as  garnishee  of  the  other  party  to  the  contract,  with- 
out having  regard  to  the  stipulation  by  which  the  amount  of 
the  laborer's  wages  is  to  be  withheld.^® 

If  there  is  a  present  indebtedness,  the  contract  as  to  when 
the  same  shall  be  paid  in  the  future  will  not  place  it  beyond 
the  reach  of  garnishment.  A  case  involving  this  question 
arose  in  Connecticut.  A  contract  was  entered  into  by  the 
vendor  and  vendee  of  certain  trade-marks,  whereby  the  ven- 
dor was  to  receive  five  hundred  dollars  monthly  in  advance, 
for  the  term  of  ten  years,  with  the  following  proviso:  "The 
payment  of  said  sum  shall  at  all  times  be  dependent  upon  the 
vendee  being  fully  secured  in  the  exclusive  use  of  said  trade- 
marks, and  if  any  other  party  shall  establish  his  right  to  the 
use  of  either  of  them,  said  payments  shall  thereupon  cease." 
For  five  years  the  vendee  enjoyed  the  exclusive  use  of  his  })ur- 
chase,  and  made  the  monthly  payments  agreed  upon.     At  the 

15  Potter  V.  Cain,  117  Mass.  238. 

1"  Vv'atkins  v.  Pope,  3S  Ga.  514: ;  Huntingdon  v.  Eisdon,  43  Iowa,  517. 
isBalliet  v.  Scott,  32  Wis.  174  ;  Doyle  v.  Gray,  110  Mass.  206  ;  Taylor  v.  Bur- 
lington etc.  E.  Co.,  5  Iowa,  114. 


297  ASSIGNMENT   OP    GARNISHEE'S    INDEBTEDNESS.     §    474 

end  of  this  time  he  was  summoned  as  garnishee,  in  an  action 
by  foreign  attachment  against  the  vendor.  The  question  was 
whether  he  could  be  held  as  for  an  absolute  indebtedness,  while 
the  stipulated  payments  were  only  to  be  made  so  long  as  he 
enjoyed  the  exclusive  use  of  the  trade-marks.  It  was  held  by 
the  Supreme  Court,  that  the  securing  of  the  vendee  in  the  ex- 
clusive use  of  the  trade-marks  was  not  a  condition  precedent 
to  the  obligation  to  pay  monthly,  but  that  a  present  indebted- 
ness was  created  for  the  whole  amount,  and  was  attachable  ; 
but  that  the  obligation  of  the  vendee  to  continue  such  pay- 
ments would  cease,  if  at  any  time  in  the  future  any  other  par- 
ty should  establish  his  right  to  use  any  of  the  trade-marks.^^ 

§  474.  Garnisliee's  Indebtedness  affected  hy  Contracts  witli 
Third  Persons  — The  garnishee's  liability  may  also  be  affected 
by  contracts  made  with  strangers  to  the  attachment  suit.  The 
commonest  example  of  contracts  of  this  kind  is  where  the  gar- 
nishee, being  indebted  to  the  principal  defendant,  has  accepted 
a  bill  drawn  by  the  latter  in  favor  of  a  third  person ;  or  where 
the  principal  defendant  has  received  a  bill  so  drawn  in  his  fa- 
vor, and  has  indorsed  it  to  another,  in  whose  hands  it  has  been 
accepted  by  the  garnishee  prior  to  service  of  garnishment. 
In  either  case,  acceptance  of  the  bill  will  be  held  as  a  contract 
binding  upon  the  drawee,  to  pay  the  amount  of  the  acceptance 
to  the  holder  of  the  bill,  and  hence  he  cannot  be  charged  as 
garnishee  of  his  original  creditor.^  By  accepting  the  bill,  he 
becomes  directly  liable  as  the  principal  debtor  of  the  holder,  or 
his  indorsee  in  case  the  bill  is  negotiable.^  So,  where  one 
made  a  contract  with  his  father,  that  the  latter  might  draw 
the  wages  earned  by  the  son,  the  employer  becoming  a  party 
to  such  contract  by  agreeing  to  pay  according  to  the  contract 
between  father  and  son,  could  not  be  charged  as  garnishee  of 
the  son,  by  whom  the  services  were  rendered.^  So,  also,  Avhere 
a  contractor  agreed  with  a  sub-contractor,  and  the  laborers  in 

19 Goodman  v.  Merideu  Britannia  Co.,  Beporter,  Dec.  19,  1883. 

1  Van  Staphorst  v.  Pierce,  4  Mass.  258. 

2  .Jarvis  v.  Wilson,  46  Conn.  90  ;  33  Am.  Rep.  18;  Hamilton  v.  Catcliings,  58 
Miss.  92. 

8  Swisber  v.  Fitch,  1  Sm.  &  Marsh.  541 ;  Vincent  v.  Watson,  18  Pa.  St.  96  ; 
White  V.  Richardson,  12  N.  H.  93. 


§   475     ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.  298 

the  lattcr's  employ,  to  withhold  so  much  of  the  price  of  work 
(lone  as  would  be  sufficient  to  pay  the  laborers'  wages,  he 
could  not  be  charo^ed  as  garnishee  in  an  action  against  the  sub- 
contractor,  in  respect  to  the  wages  so  secured  to  the  laborers.* 
But  the  contract,  to  vary  or  modify  the  liability  of  the  gar- 
nishee, must  be  such  as  to  have  the  same  effect  upon  his  liabil- 
ity to  the  principal  defendant.  If  the  payment  could  be  en- 
forced by  action  in  the  name  of  the  defendant  against  his 
debtor,  notwithstanding  the  contract,  it  will  be  no  obstacle  to 
a  recovery  against  such  debtor,  when  he  is  summoned  as  gar- 
nishee in  respect  to  such  indebtedness.  Where  it  was  objected 
that  the  debt  dtie  from  the  garnishee  was  payable  in  a  foreign 
country,  it  was  "decided  that  such  objection  would  not  avail, 
for  the  reason  that  the  defendant  might  have  sued  his  debtor 
in  the  Court  where  the  proceeding  was  had.^  And  it  does  not 
seem  to  make  any  material  difference,  whether  the  place  of 
payment  relied  on  as  part  of  the  contract  is  merely  incidental 
to  the  fact  that  the  obligation  to  pay  was  incurred  in  a  foreign 
jurisdiction,  or  is  by  stipulation  agreed  to  be  paid  in  another 
State.  In  either  case,  if  a  debt  is  incurred  for  which  the  de- 
fendant could  have  sued  in  the  Court  where  the  garnishment 
proceeding  is  pending,  the  terms  of  the  contract  are  not  vio- 
lated by  requiring  the  garnishee  to  answer  there. ^ 

§  475.  The  Consideration  of  Contracts  with  Third  Persons. 
— The  examples  given  in  the  next  preceding  section,  of  con- 
tracts with  third  persons,  by  which  the  garnishee's  liability  is 
affected,  are  in  effect  such  as  may  amount  to  an  equitable  as- 
signment of  the  debt,  on  the  part  of  the  creditor,  with  notice 
to  the  debtor.  Or  they  may  fall  short  of  this,  so  far  as  the 
participation  of  the  creditor  is  concerned,  and  leave  the  dis- 
charge of  the  garnishee  to  rest  entirely  upon  the  liability 
which  he  has  assumed  to  the  third  person.  The  result  may  be 
a  complete  novation.  If  by  the  transaction  the  debtor  is  dis- 
charged from  his  liability  to  his  original  creditor,  by  contract- 
ing a  new  obligation  in  favor  of  a  new  creditor,  by  the  order 

4  Balliet  v.  Scott,  32  Wis.  174. 

6  Blake  v.  WUIiauas,  6  Pick.  28G  ;  17  Am.  Dec.  372. 

6  Sturtevaut  v.  liobinsou,  18  Pick.  175. 


299  ASSIGNMENT   OP    GARNISHEE'S    INDEBTEDNESS.     §    475 

of  his  original  creditor,  it  will  follow  that  the  debt  due  from 
the  original  to  the  new  creditor,  provided  one  exist,  will  also 
be  extinguished  pro  tanto.^  This  is  the  consideration  for  the 
contract,  as  between  the  two  creditors,  and  is  a  matter  with 
which  the  garnishee  has  little  or  nothing  to  do.  The  consider- 
ation which  he  pays  for  the  release  from  liability  to  the  defen- 
dant in  attachment,  is  his  promise  to  pay  defendant's  creditor, 
and  thus  extinguish  that  debt.  The  novation  of  debts  is  fully 
recognized  at  common  law,  notwithstanding  that  it  amounts  in 
effect  to  a  negation  of  the  common  law  doctrine  that  choses  in 
action  cannot  be  so  assigned  as  to  give  the  assignee  right  of 
action  in  his  own  name.  True,  there  is  the  difference  between 
the  two  transactions,  that  in  case  of  novation  the  consent  of 
the  debtor  is  obtained.  But  if  the  objections  to  assignment 
of  a  chose  in  action  were  of  any  logical  value,  they  would  be 
found  to  apply  to  the  shifting  of  burdens  by  novation.  When 
the  transfer  is  called  by  this  name,  it  is  a  contract  supported 
by  a  consideration.  If  the  debt  due  from  the  principal  defen- 
dant to  the  third  party  is  not  extinguished,  the  latter  acquires 
no  right  of  action  against  the  garnishee,  whose  promise  to  the 
new  creditor  is  unsupported  by  a  valid  consideration,  and  the 
debt  from  the  garnishee  to  his  original  creditor  remains.^  But 
when  the  debtor  is  directed  to  pay  the  amount  of  his  indebted- 
ness to  a  new  creditor,  and  in  pursuance  of  this  direction  agrees 
to  do  so,  he  has  a  right  to  act  upon  the  belief  that  the  transac- 
tion between  the  other  parties  to  the  novation  was  in  good 
faith  and  for  a  valid  consideration.^  If,  however,  before  he 
has  paid  the  new  creditor  he  should  be  summoned  as  garnishee 
of  his  original  creditor,  the  question  of  the  consideration  of  the 
contract  under  which  he  claims  exoneration  may  be  inquii'ed 
into,  in  the  proceeding  to  which  the  new  creditor  should  be 
made  a  party .^ 

1 1  Pars,  on  Cont.  217;  Tatlock  v.  Harris,  3  T.  E.  174;  Gibson  v.  Cook,  20  Pick. 
15  ;  32  Am.  Dec.  194  ;  Mandeville  v.  Welch,  5  Wheat.  277  ;  Robins  v.  Bacon,  3 
Greenl.  34fi ;  Brooks  v.  Hildreth,  22  Iowa,  469. 

2  Butterfield  v.  Hartshorn,  7  N.  H.  345  ;  26  Am.  Dec.  741 ;  Cuxon  v.  Chadley, 

3  B.  &  G.  591  ;  Warren  v.  Batchelder,  15  N.  H.  125  ;  Short  v.  Gity  of  New  Or- 
leans, 4  La.  An.  281 ;  McKinney  v.  Alvis,  14  111.  34  ;  Gailsu.  Schooner  Osceola, 
14  La.  An.  54  ;  Huntingdon  v.  Eisdou,  43  Iowa,  517  ;  Van  Staphorst  v.  Pearce, 

4  Mass.  258  ;  Vincent  v.  Watson,  18  Pa.  St.  96  ;  Sweet  v.  Ordway,  23  Pick.  266. 

3  Diefendorf  v.  Oliver,  8  Kans.  365. 
<Langley  y.  Berry,  14  N.  H.  82. 


§   47G    ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.         300 

Even  a  voluntary  release  of  the  debtor  prior  to  garnishment, 
or  a  voluntaiy  transfer  of  the  credit  to  another  by  the  prin- 
cipal debtor,  where  the  transaction  could  not  be  impeached  on 
the  ground  that  it  wns  fraudulent  as  to  creditors  of  the  ])arty 
releasing  or  assigning  the  debt,  would  prevent  the  debtor  from 
being  charged  as  garnishee. 

§  476.  The  Contract  must  be  with  Party  Capable  of  Con- 
tracting in  Relation  to  the  Subject  Matter. — A  void  contract 
cannot  be  relied  upon  by  the  garnishee,  or  by  the  defendant  in 
attachment,  to  exonerate  the  former  from  liability,  when  sum- 
moned in  a  suit  by  attachment  against  the  latter.^  In  any  t»f  the 
examples  given  in  the  next  preceding  section,  where  the  contract 
of  the  garnishee  was  to  pay  the  debt  due  to  the  defendant  to 
some  other  person,  who  held  a  claim  against  the  defendant,  It 
is  essential  that,  to  be  binding  on  the  garnishee,  so  as  to  pre- 
vent his  being  charged,  such  contract  must  have  been  made 
with  the  assent  of  the  party  to  whom  the  garnishee  was  in- 
debted. It  is  obvious  that  a  debtor  cannot  assume  his  cred- 
itor's liabilities  to  others,  without  the  assent  of  his  creditor, 
and  thus  discharge  his  own  indebtedness.  This,  however, 
raises  the  question  of  the  garnishee's  power  to  affect  his  liabil- 
ity by  contracts  with  third  parties.  It  is  also  held,  that  he 
cannot  be  released  by  third  parties,  who  lack  the  necessary 
control  over  his  liability  to  the  principal  defendant.  Thus, 
where  it  appeared  by  garnishee's  answer  that  he  was  liable  on 
a  note  which  was  held  by  a  third  party  as  collateral  security, 
who,  without  defendant's  knowledge  or  consent,  released  the 
maker  from  all  further  liability  on  a  payment  of  a  part  only 
of  his  indebtedness,  it  was  properly  held  that  the  garnishee 
could  be  charged  as  to  the  amount  unpaid.^  The  contract,  to 
be  available,  must  be  one  that  would  have  been  binding  on  the 
defendant  if  he  were  suinij  for  the  debt  due  from  the  fj^av- 
nishee.  And  though  it  may  be  sufficient  in  this  respect,  by 
reason  of  defendant's  acquiescence.  It  will  not  be  operative 
against  the  plaintiff,  as  we  shall  presently  see.  If  the  assent  of 
the  third  party  is  wanting.^ 

iBrovrn  v.  Foster,  4  Cush.  214. 
2  Wiggiu  V.  Lewis,  19  N.  H.  548. 
8  Infra,  §  479. 


301         ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.     §   477 

§  477.  Garnishee's  Liability  as  Surety  or  Guarantor  of  De- 
fendant.— Tlie  contracts  frequently  put  foi'vvarJ  by  the  gar- 
nishee, as  a  reason  why  he  should  not  be  charged  in  the  action 
against  defendant,  have  reference  to  his  own  indemnity  on  ac- 
count of  some  collateral  obligation  assumed  for  his  creditor. 
It  would  be  manifestly  unjust  to  enforce  payment  from  a 
debtor  holding  such  relations  towards  his  creditor,  and  thus 
require  him  to  forfeit  his  only  security  for  the  liability  as- 
sumed. Accordingly,  where  the  defendant  gave  his  services 
to  the  garnishee  at  an  agreed  rate  of  wages,  and  the  garnishee 
had  become  liable  for  his  employee  on  a  bail  bond,  Avlth  the 
agreement  that  the  wages  should  be  held  by  the  employer  as 
indemnity  for  his  liability,  the  writ  of  garnishment  at  the  suit 
of  the  employee's  creditor  was  not  permitted  to  disturb  the  re- 
lations between  the  parties  as  fixed  by  this  contract.^  So, 
where  defendant  was  working  for  a  firm,  under  a  contract  by 
which  the  firm  undertook  to  pay  the  rent  of  the  employee's 
house  to  a  member  of  the  firm,  and  for  that  purpose  withheld 
the  amount  from  his  wages,  the  employers  could  not  be  held 
as  garnishees  in  respect  to  the  amount  so  withheld.^  So,  also^ 
where  the  garnishee  had  become  indebted  to  defendant,  and 
after  partial  payment  of  such  indebtedness  the  remainder  was 
left  in  the  hands  of  the  debtor,  as  indemnity  for  his  liability  as 
surety  on  defendant's  promissory  note,  it  was  held  that  he  could 
not  be  charged  as  a  debtor  of  defendant  while  the  note  was 
unpaid.^ 

In  the  foregoing  examples,  the  indemnity  is  claimed  under 
an  express  understanding.  Where,  however,  one  incurs  a 
contingent  liability  as  surety,  it  is  held  that  he  cannot  offset  it 
against  a  deposit  of  money  made  with  him  by  the  principal 
debtor,  unless  the  deposit  was  made  expressly  to  indemnify 
the  surety  against  his  liability.^  ^hcvQ  properiy  is  in  posses- 
sion of  the  garnishee,  possession  of  which  he  could  not  retain 
for  his  security  on  account  of  a  debt  owing  by  the  owner  tO' 
himself,  as  against  the  owner's  claim  for  restitution,  he  cannot 

1  "White  V.  Eichardson,  12  N.  H.  93;  Post,  §  5ia 

2  Mason  v.  Ambler,  6  Allen,  124. 

*  St.  Louis  V.  Regenfuss,  28  "Wis.  144. 

*  McDowell  V.  Crook,  10  La.  An.  31. 


§   477     ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.  302 

withhold  it  when  summoned  as  garnishee  of  the  owner,  except 
where  the  statute  makes  special  provision  for  such  cases.^  The 
fact  that  garnishee  is  in  possession  of  proj^erty  of  his  debtor, 
or  one  for  whom  he  is  contingently  liable,  does  not  ipso  facto 
give  the  party  in  possession  the  rights  of  a  pledgee  for  his  se- 
curity or  indemnity.  But  wliere  the  garnishee  is  hidehted  to 
the  principal  defendant,  in  whose  behalf  he  has  assumed  the 
liability  of  surety  or  guarantor,  has  he  not  a  right  to  withhold 
payment  for  his  indemnity,  without  an  express  agreement  to 
that  effect  ?  Would  not  his  own  intention,  where  the  liability 
was  assumed,  or  the  debt  contracted,  to  make  his  payment  of 
the  direct  obligation  contingent  upon  his  not  being  called  upon 
to  discharge  the  collateral  debt,  have  some  weight  in  determin- 
ing the  question  ?  It  would  seem,  in  any  event,  to  require  but 
slight  evidence  of  a  tacit  understanding  between  the  parties, 
that  the  surety  should  not  be  called  upon  to  pay  the  principal 
until  his  liability  as  surety  was  extinguished.  In  Vermont, 
the  statute  makes  provision  for  the  garnishee's  retaining  out  of 
credits  in  his  hands  sufficient  to  set  off  any  demand  the  defend- 
ant may  have  against  him.  And  in  construing  this  statute  the 
Court  decides  that,  as  no  limitation  is  put  on  the  demands  which 
the  garnishee  may  thus  indemnify  himself  against,  it  applies  as 
well  to  those  which  are  not  yet  due  as  to  those  that  have 
reached  maturity  at  the  time  of  service  of  summons.  It  was 
accordingly  held  that  he  might  retain  of  a  sum  to  be  paid  on 
defendant's  promissory  note  not  yet  due,  sufficient  to  pay  his 
own  note  due  presently.^ 

Where  the  garnishee  was  proprietor  of  a  factory,  and  the 
defendant  kept  a  boarding  house,  and  boarded  garnishee's 
workmen,  whereby  he  became  indebted,  but  had  verbally  agreed 
with  certain  parties  who  furnished  supplies  to  defendant,  that 
at  the  end  of  each  quarter  he  would  see  them  paid ;  the 
Court  held  that  the  amount  of  garnishee's  liability  on  this 
guaranty  must  be  deducted  from  his  debt  to  the  defendant,  as 
he  had  a  right  to  withhold  it  for  the  purpose  of  meeting  the 
liability  thus  assumed.  As  he  could  withhold  it  from  defend- 
ant under  this  contract,  he  could  do  the  same  when  sought  to 

6  Michigan  etc.  R.  Co.  v.  Chicago  etc.  E.  Co.,  1  HI.  App.  399. 
6  Lynde  v.  Watson,  52  Tt.  648. 


303  ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.     §    478 

be  cliai'ged  as  garnishee. •"  This,  it  will  be  observed,  was  a 
contract  within  the  statute  of  frauds,  and  the  decision  was 
made  in  full  view  of  this  feature  of  the  contract.  The  verbal 
undertaking  to  answer  for  the  debt  of  another  was  lield  bind- 
ing upon  the  garnishee,  so  long  as  he  chose  to  acknowledge  it. 
Neither  defendant  nor  defendant's  creditors  could  force  him 
into  a  position  where  he  would  be  under  any  obligation  to 
shield  himself  from  liability,  under  the  provisions  of  a  statute 
intended  only  for  the  protection  of  j^arties  against  whom  such 
liabilities  were  alleged.  To  hold  otherwise,  would  be  to  sub- 
vert the  purposes  of  a  statute  to  prevent  frauds  and  perjuries 
Into  an  instrument  of  fraud,  and  compel  one  against  conscien- 
tious scruples  to  deny  his  obligation.^  Where,  however,  such 
contracts  are  held  to  be  not  only  voidable  but  absolutely  void, 
it  is  held  otherwise ;  ^  but  such  rulings  cannot  be  in  harmony 
with  the  general  construction  of  the  Statute  of  Frauds. 

§  478.  Where  Defendant  Holds  the  Claim  against  Garnishee 
in  a  Representative  Capacity. — The  foundation  of  the  garni- 
shee's liability  is  his  indebtedness  to  the  principal  defendant, 
and  we  have  seen  in  a  former  chapter  that  such  liability  only 
exists  when  defendant  is  the  creditor  of  the  garnishee,  and 
the  debtor  of  the  plaintiff  in  the  same  capacity.  In  other 
words,  where  he  is  personally  bound  to  the  plaintiff,  and 
holds  a  claim  against  garnishee  as  the  trustee,  agent,  or  other 
representative  of  the  real  creditor,  the  latter  cannot  be  charged.^ 
The  only  connection,  however,  in  which  this  question  of  the 
capacity  in  which  defendant  appears  as  the  creditor  of  the 
garnishee  is  pertinent  to  the  subject  of  this  chapter,  is  where 
the  principal  defendant  holds  the  demand  by  assignment  prior 
to  garnishment,  with  authority  to  sue  in  his  own  name  ;  but 
only  to  the  use  of  the  assignor,  who  is  the  real  creditor  of  the 
garnishee.  In  cases  of  this  kind,  the  garnishee  could  not  be 
charged  as  the  garnishee  of  the  defendant,  but  could  be 
charged  as  the  debtor  of  the  creditor  who  had   assigned  the 


7  Cahill  V.  Bigelow,  18  Pick,  369. 

8  See  Swett  v.  Ordway,  23  Pick.  296. 

9  Strong  V.  Mitchell,  19  Vt.  6ii  ;  Hazeltine  V.  Page,  4  Vt.  49. 
1  Ante,  §§  454,  455,  456. 


§   479     ASSIGNMENT   OF    GARNISHEE'S   INDEBTEDNESS.  304 

demand.^  Thus,  where  the  assignment  is  made  to  an  attorney, 
to  enable  him  to  collect  the  debt  for  his  client,  the  debtor 
could  not  be  held  as  garni^lice  of  the  attorney  in  an  action 
against  the  latter,  while  he  could  be  held  in  an  action  against 
the  client,  notwithstanding  the  assignment.  And  where  the 
party  beneficially  interested  allows  another  to  hold  the  demand 
in  his  own  name,  the  former  is  regarded  as  the  real  creditor, 
and  the  debtor  may  be  effectually  served  with  garnishment  in 
a  suit  against  him.^ 

§  479.  Fraudulent  Assignments  and  Contracts. — In  order 
that  the  assignment  of  the  debt,  the  contract  of  novation,  or 
other  agreement  by  which  the  garnishee  may  claim  to  have 
been  discharged  from  liability  to  the  principal  defendant,  shall 
be  effective  to  that  end,  when  the  transaction  is  open  to  in- 
quiry, it  must  appear  to  have  taken  place  in  good  faith. ^  The 
practice  of  fraud  in  making  the  transfer,  either  on  the  part  of 
the  garnishee  or  the  defendant,  will  vitiate  it,  and  leave  the 
former  for  all  the  purposes  of  the  proceeding  indebted  to  the 
latter,  and  consequently  chargable  in  the  interest  of  the  plain- 
tiff in  attachment. 

The  commonest  examples  of  the  fraudulent  transactions  by 
which  such  contracts  are  rendered  void,  as  against  creditors, 
are  those  in  which  the  direct  object  of  the  defendant  is  to  cir- 
cumvent creditors.  This  may  be  done  by  a  fraudulent  trans- 
fer of  the  claim  against  garnishee,  of  the  fraudulency  of  which 
he  is  ignorant,  or  it  may  be  by  the  connivance  of  the  garni- 
shee. In  either  case,  the  intent  with  which  the  thing  Is  done 
defeats  Its  purpose,  when  that  intent  is  disclosed.  Of  course, 
the  intention  Avith  which  a  transaction  is  effected  is  a  matter 
of  evidence  ;  but  there  are  certain  Indicia  of  a  fraudulent  In- 
tent, that  whenever  they  are  found  to  exist,  the  Inference  is 
almost  Irresistible  that  the  transaction  was  not  honestly  In- 
tended by  the  party  most  interested  In  carrying  it  into  effect. 
Thus,  when  the  creditor  approaches  his  debtor  and  discloses 
the  fact  that  he  is  indebted  to  others,  and  has  fears  that  these 

2  Enos  V.  Tuttle,  3  Conn.  27. 

8  Price  V.  Bradford,  4  La.  35;  Enos.  v.  Tuttle,  3  Conn.  27. 

1  Hopper  V.  Hills,  9  Pick.  435. 


305  ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.     §    479 

creditors  will  attach  the  debt ;  and  in  connection  with  this 
statement  requests  the  debtor  to  make  notes  covering  the 
amount  of  his  Indebtedness,  payable  to  a  third  person,  from 
whom  no  consideration  is  received,  and  who  had  no  knowledge 
of  the  transaction  ;  the  evidence  is  conclusive  that  the  purpose 
for  which  the  transfer  is  m^de  is  to  defraud  the  creditors  of 
the  creditor,  and  it  would  be  so  held  in  any  case  where  these 
were  the  facts,  and  the  debtor,  after  giving  such  notes,  was 
summoned  as  garnishee  at  the  suit  of  one  of  such  defrauded 
creditors.^  The  badges  of  fraud  in  such  a  case  as  this  would 
be  :  1,  the  apprehensions  of  the  party  who  requested  the  debt- 
or to  give  the  notes  ;  2,  the  fact  that  they  were  made  payable 
to  a  third  party,  who  was  ignorant  of  the  credit  created  in  his 
favor ;  and  3,  the  absence  of  any  consideration  passing  from 
the  third  party  to  the  principal  defendant,  who  directed  the 
transfer.  As  between  the  party  who  involuntarily  became  a 
creditor  of  the  garnishee,  and  the  creditors  of  the  party  who, 
without  consideration,  released  his  claim  against  the  garnishee, 
the  transaction  would  be  held  fraudulent.^  Where  this  meth- 
od is  resorted  to,  the  most  facile  means  of  accomplishing  the 
end  would  be  by  making  the  notes  negotiable,  as  they  would 
be  freed  from  the  taint  of  fraud  when  found  in  the  hands  of  a 
subsequent  indorsee  before  maturity,  who  took  them  without 
notice  of  the  fraud.^  And  it  is  even  held  that  notice  of  one  of 
the  facts  that  go  to  make  up  the  evidence  of  fraud,  would  not 
affect  the  validity  of  the  note  in  such  hands,  when  this  fact  of 
itself  was  not  sufficient  to  notify  the  indorsee  that  the  note 
was  fraudulently  issued.  Thus,  where  the  indorsee  of  a  check 
was  a  purchaser  for  value  from  a  donee,  with  knowledge  that 
the  indorser  paid  no  consideration  therefor,  it  was  decided 
that  the  holder  would  be  protected  as  against  the  attaching 
creditor,  at  whose  suit  the  drawer  of  the  check  was  summoned 
as  garnishee,  for  the  reason  that  the  indorsee  had  no  knowl- 
edge of  the  insolvency  of  the  donor. ^     But  where  goods  were 

2  Camp  V.  Clark,  14  Vt.  387;  Green  v.  Dougbty,  6  N.  H.  572;  Allen  v.  Hall,  5 
Met.  2«3. 

3  Fiilweiler  v.  Hughes,  17  Pa.  St.  440.    See  Marsh  v.  Da.vis,  24  Vt.  363;  Bibb 
V.  Smith    1  Dana,  580;  Kesler  v.  St.  John,  22  Iowa,  565. 

*  See  Camp  r.  Clark.  14  Vt.  387. 
6  Fulweiler  v.  Hughes,  17  Pa.  St.  440. 
II.  Attach.— 20. 


§    479    ASSIGNMENT   OF    GARNISHEE'S    INDEBTEDNESS.  306 

sold,  and  a  negotiable  note  taken  in  payment,  made  payable  to 
the  pretended  seller,  though  the  real  owner  was  known  to  the 
maker,  and  also  to  one  who  purchased  the  note  before  matur- 
ity, it  was  held  that  the  purchaser  was  liable  as  garnishee, 
when  summoned  at  the  suit  of  the  seller's  creditors.^  Selling 
property,  or  bartering  the  same  for  other  property  which  in 
turn  is  sold,  and  notes  taken  for  the  purchase  price,  each  tran- 
saction being  in  the  name  of  a  secret  trustee,  whether  it  be 
some  one  nearly  related  to  the  real  owner  or  "not,  will  not 
be  allowed  to  extinguish  his  title  to  the  purchase  money, 
however  numerous  may  be  the  mutations  through  which  the 
consideration  may  be  followed,  provided  in  the  end  the  evi- 
idence  of  debt  rests  in  the  hands  of  one  who  is  not  protected 
as  an  innocent  purchaser  for  value.  The  maker  of  notes  under 
such  circumstances,  however  remote  from  the  original  fraud, 
may  be  charged  as  garnishee  of  the  party  who  supplied  the 
original  consideration,  when  after  maturity  the  notes  are  found 
■in  the  hands  of  one  Avho  paid  no  consideration  therefor,  and 
did  not  receive  them  directly  or  indirectly  from  a  purchaser 
for  value  and  before  maturity. '^  And  when  property  is  sold 
in  this  manner,  and  non-negotiable  notes  taken  in  the  name  of 
a  party  other  than  the  seller,  with  the  declared  purpose  of 
never  paying  some  of  the  vendor's  creditors  and  of  delaying 
•others,  the  makers  of  the  notes  having  notice  in  this  direct 
and  positive  manner  of  the  fraudulent  intent  with  which  the 
subterfuge  is  contrived,  may  be  charged  as  garnishees  of  the 
-vendor  upon  no  other  showing.^ 

It  cannot  be  said,  however,  that  a  debtor  pays  his  debt  in 
order  to  defraud  the  creditors  of  his  creditor,  even  though  the 
^avowed  purpose  of  the  payment  is  to  prevent  an  attachment  of 
the  sum  due  in  the  hands  of  the  debtor.  Payment  of  the  debt 
is  a  bar  to  the  proceeding  by  garnishment,  regardless  of  the 
purpose  with  which  the  payment  was  made,  as  regards  its  ef- 
fect upon  the  creditors  of  the  creditor.^  This  extinguishes  all 
the  claim  the  defendant   had  against  the  garnishee,  and  the 

«  Enos  V.  Tuttle,  3  Conn.  27. 

7  Patton  V.  Gates,  67  111.  164  ;  Camp  v.  Clark,  14  Vt.  387. 

8  Green  v.  Doughty,  6  N.  H.  572. 

9  Cochran  v.  Fitch,  1  Sandf .  Ch.  148. 


307         ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.     §    480 

creditors  of  the  former  can  have  no  o-reater  rights. -"^  And 
when  a  negotiable  note  was  given  by  a  debtor  in  lieu  of  pay- 
ment, which  he  was  prevented  from  making  by  the  inability 
of  the  creditor  to  furnish  change  for  a  thousand  dollar  bill,  it 
was  held  that  the  note  given  was  a  payment,  and  consequently 
that  the  garnishee  was  not  chargable.^^  It  is  also  held  in  the 
same  State  that  after  a  party  has  paid  another  by  a  check, 
and  the  check  is  taken  in  payment  for  the  debt,  the  drawer  of 
the  check  cannot  be  held  as  garnishee  of  the  party  to  whom 
such  payment  was  made,  even  though  at  the  time  of  the  ser- 
vice the  check  has  not  been  presented  for  payment  at  the  bank 
upon  which  it  is  drawn. ^^  But  in  Wood  v.  Bodwell,^'^  there 
was  evidence  tending  to  prove  that  the  negotiable  note  was 
given  at  the  time  for  the  express  purpose  of  placing  the  debt 
beyond  the  reach  of  creditors  of  the  payee.  But  under  the 
laws  of  Massachusetts  the  maker  of  a  negotiable  note  could 
not  be  charged  as  garnishee  of  the  payee,  even  when  the  lat- 
ter had  it  in  2:)ossession  before  maturity,  at  the  time  summons 
was  served ;  and  as  the  debtor  was  willing  and  ready  to  pay 
the  debt,  but  for  the  circumstance  that  they  could  not  change 
the  bill  which  the  debtor  tendered,  the  note  was  given  in  lieu 
of  cash.  In  the  case  cited,  where  the  check  was  used  in  pay- 
ment, the  question  of  intent  to  avoid  attachment  of  the  debt 
was  not  raised ;  but  so  long  as  it  is  to  be  regarded  as  payment, 
it  will  be  governed  by  substantially  the  same  rule.  There 
is  no  fraud  in  paying  a  debt  to  one's  immediate  creditor, 
though  payment  is  made  under  the  apprehension  that  in  case 
of  delay  the  indebtedness  may  be  attached  by  garnishment. 

§  480.  The  Law  that  Determines  the  Validity  of  Contracts 
or  Assignments. — We  have  had  occasion  to  notice  the  influence 
of  the  lex  loci  contractus  in  determining  whether  a  bill  or  note 
is  to  be  regarded  as  a  negotiable  instrument.  The  conclusion 
was  that  tins  influence  is  owing  to  the  rule  that,  unless  otherwise 
expressly  agreed,  the  debt  is  payable  in  the  State  where  the 

"  Ballio  V.  Poisset,  8  Mart.  N".  S.  336;  19  Am.  Dec.  185. 
"  Wood  V.  Bodwell,  12  Pick.  268. 
12  G«tchell  V.  Chase,  124  Mass.  366. 
w  12  Pick.  268. 


§   480     ASSIGNMENT   OF    GARNISHEE'S    INDEBTEDNESS.  308 

contract  is  maJc.^  For  we  have  seen  in  the  same  connection, 
that  wliere  a  note  is  executed  in  one  State  and  made  payable 
in  another,  the  question  of  its  negotiabilitj  is  determined  by 
the  hiw  of  the  latter  State.  It  is  also  held  that  where  an  in 
strument  is  executed  and  delivered  in  a  State  under  whose 
laws  it  is  non-negotiable,  and  is  negotiated  and  put  in  circula- 
tion in  another  State,  where  it  is  recognized  by  law  as  nego- 
tiable paper,  it  will  be  so  regarded  in  deference  to  the  law  of 
the  State  where  the  contract  of  indorsement  is  made,  when  it  is 
sought  to  reach  the  amount  due  thereon  in  the  hands  of  the 
payer."  The  rule  is  much  the  same,  when  the  question  is 
whether  the  assignment  or  other  contract  affecting  garnishee's 
liability  is  valid  and  binding.^  If  a  chose  in  action  is  trans- 
ferred by  assignment  in  one  State,  according  to  the  laws  there- 
of, so  as  effectually  to  divest  the  title  of  the  assignor  and  vest 
It  in  the  assignee,  the  contract  will  be  recognized  and  enforced  in 
another  State,  even  though  the  assignment  should  not  be  in 
strict  conformity  to  the  laws  of  the  latter  State.*  The  assign- 
ment will  be  sustained  because  It  was  lawful  when  made, 
upon  the  same  principles  of  comity  that  incline  the  Court  to 
respect  the  rights  acquired  by  alienation,  mortgage,  or  other- 
wise, to  personal  property,  under  laws  foreign  to  the  jurisdic- 
tion where  such  rights  are  questioned.  Such  assignments  are 
adjudged  valid  as  against  attaching  creditors,  whether  residing 
m  the  State  where  the  proceeding  is  had,  or  In  that  where  the 
assignment  was  made.^  Indeed,  no  reason  is  apparent  why 
the  place  of  residence  of  the  parties  should  affect  the  question 
one  way  or  another,  except  where,  for  the  purpose  of  deter- 
mining the  situs  of  the  chose  In  action,  the  residence  of  the 
defendant  in  attachment  may  become  the  subject  of  Inquiry. 
It  Is  also  decided,  that  assignments  which  are  valid  where 
made,  will  be  sustained  against  attaching  creditors  residing 
where  the  chose  in  action  is  situated.^     But  it  must  not  be 

1  Ante,  §  464. 

2  Ludlow  V.  Bingham,  4  Dall.  47;  Green  v.  Gillet,  5  Day,  485. 

8  Burlock  V.  Taylor,  16  Pick.  335 ;  "Wilson  v.  Carson,  12  Md.  54;  Daniels  V. 
Willard,  16  Pick.  .36;  Noble  r.  Smith,  6  R.  I.  446. 
^Mowrey  r.  Crocker,  6  Wis.  320;  Russell  v.  Tunno,  11  Richardson,  303. 

5  Van  Buskirk  v.  Hartford  Fire  Ins.  Co.,  14  Conn.  583;  36  Am.  Dec.  473j 
Whipple  D.Thayer,  10  Pick.  23;  Martin  v.  Potter,  11  Gray,  37. 

6  Houston  V.  Nowland,  7  Gill  &  J.  480. 


309        ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.     §   481 

overlooked,  that  while  the  contract  may  be  enforced,  so  far  a^ 
the  question  of  its  enforcement  is  dependent  upon  its  valid- 
ity, according  to  the  laws  of  the  place  where  the  contract 
was  made,  even  where  that  conflicts  with  the  lex  fori^  yet  the 
remedy  can  only  be  such  as  the  law  of  the  place  of  trial  af- 
fords. Hence,  where  the  assignment  or  other  contract  in  re- 
spect to  the  chose  in  action  is  sought  to  be  enforced  by  intei'- 
vention  in  a  State  dijfferent  from  that  in  which  the  contract 
was  entered  into,  it  cannot  be  maintained  on  the  ground  of  its 
original  validity,  if  the  local  law  withholds  the  remedy. 

§  481.  Duty  of  the  Garnishee  to  Disclose  his  Rights  acquired 
by  prior  Assignment  or  Contract. — When  the  party  summoned 
in  the  proceeding  has,  by  prior  contract,  secured  to  himself 
certain  rights  in  respect  to  the  debt  owing  by  him  to  the  prin- 
cipal defendant,  he  cannot  safely  slumber  on  such  rights  until 
the  matter  has  gone  to  judgment  against  him.  If  he  has  a 
set-off  he  must  set  it  up  in  his  answer,  unless  the  accounts  be- 
tween himself  and  the  principal  defendant  have  been  balanced, 
and  his  indebtedness  thereby  extinguished,  so  that  he  may 
simply  answer,  denying  all  indebtedness.  When  the  answer 
charo;es  the  "-arnisliee  as  a  debtor  of  the  defendant,  and  he  re- 
lies  upon  a  set-ofP,  the  facts  should  be  stated  in  respect  thereto, 
so  that  the  Court  may  determine  the  amount.^  But  he  is  un- 
der no  obligation  to  claim  by  way  of  set-off  a  mere  chose  in  ac- 
tion, as  a  note  or  other  written  evidence  of  indebtedness  in  the 
hands  of  defendants,  as  that  does  not  create  a  debt,  and  so  long 
as  it  retains  its  original  character,  may  be  withdrawn  from  de- 
fendant's possession  at  any  time.^  The  proper  test  of  whether 
a  claim  may  be  set  off  by  the  garnishee,  is  whether  there  is  an 
express  or  implied  promise  on  the  part  of  defendant  to  pay  the 
garnishee.  And  where  this  promise  appeared  in  a  case  where 
tlie  set-off  was  for  money  advanced  by  a  father  to  a  son,  it  was 
held  immaterial  that  other  circumstances  than  the  promise  of 
repayment  influenced  the  party  in  making  the  advance.^  When 
assignments  or  contracts  of  any  kind  made  in  favor  of  the  party 

1  Grain  v.  Gould,  46  111.  293;  Lamb  v.  Franklin  Mf 'g  Co.,  18  Me.  187. 

2  Rankin  v.  Simonds,  27  111.  352. 
8  Sampson  v.  Hyde,  10  N.  H.  492. 


§    481     ASSIGNMENT    OF    GARNISHEE'S   INDEBTEDNESS.  310 

summoned  as  garnishee  are  not  Interposed  in  the  garnishment 
proceedings  prior  to  judgment,  it  will  only  be  under  circum- 
stances exceptionally  favorable  to  him  that  lie  will  be  permit- 
ted to  avail  himself  of  them  after  he  has  been  charg-ed. 

When  the  assignment  or  prior  contract  is  in  favor  of  a  third 
person,  his  duty  to  disclose  the  same  will,  of  course,  depend 
upon  his  having  notice  thereof.  But  when  he  is  notified,  the 
duty  becomes  imperative ;  and  for  a  failure  to  make  such  dis- 
closure, the  judgment  rendered  against  him  will  be  no  protec- 
tion to  him  in  a  subsequent  action  by  the  assignee.*  And  the 
necessity  of  disclosing  any  such  assignment  of  which  he  has  been 
notified,  is  not  obviated  by  the  fact  that  the  pendency  of  the 
garnishment  proceeding  was  known  to  the  assignee,  and  he 
might  have  intervened  and  been  made  a  party  on  his  own  mo- 
tion.^ Nor  is  the  garnishee  exonerated  by  the  fact  that  the  notice 
w^as  received  after  service  of  summons  in  garnishment,^  or 
even  after  the  answer  is  filed,  provided  there  is  still  time  to 
bring  the  matter  to  the  attention  of  the  Court  and  the  attach, 
ment  plaintiff  by  an  amendment  of  the  answer.'  The  garnishee 
cannot  avoid  the  consequences  of  his  reticence  in  the  matter 
of  prior  rights  to  the  indebtedness  acquired  by  third  parties, 
upon  the  ground  that  he  did  not  have  absolute  knowledge  of 
the  assignment,  or  that  he  did  not  believe  the  information  re- 
ceived in  respect  thereto  to  be  true.  It  is  not  for  him  to  ad- 
judicate the  rights  of  the  party,  even  to  his  own  satisfaction, 
before  he  discloses  the  claim  made  by  the  stranger  to  the  ac- 
tion. It  is  sufficient  for  him  that  he  received  notice,  and  the 
truth  of  the  facts  brought  to  his  attention  will  be  determined 
by  the  Court  or  jury.^     Should  the  information  prove  to  be 

4  Nugent  V.  Opdyke,  9  Eob.  (La.)  453  ;  Fowler  v.  Williams,  52  Ala.  16  ;  Bun- 
ker  V.  Gilmore,  40  Me.  88  ;  Debner  v.  Helmbacher  Mills,  7  111.  App.  47;  Sim- 
mons V.  Guyon,  57  Ala.  Ill  ;  Smith  v.  Ainscow,  11  Neb.  476 ;  Supra,  §  471; 
Ante,  §  371. 

5  Large  V.  Moore,  17  Iowa,  258. 

6  Tabor  v.  Van  Vranken,  39  Mich.  793.  Conira,  Ward  t-.Morrison,  25  Vt.596; 
Van  Buskirk  v.  Hartford  etc.  Ins.  Co.,  14  Conn.  141 ;  36  Am.  Dec.  473. 

'  Lewis  V.  Dimlap,  &7  Miss.  130 ;  Tracy  v,  McGarty,  12  R.  I.  168 ;  Dix  v. 
Cobb,  4  Mass.  508;  Smith  v.  Sterritt,  24  Mo.  260. 

s  Wicks  V.  Branch  Bank,  12  Ala.  594  ;  Bank  of  St.  Mary  v.  Morton,  12  Eob. 
(La.)  409  ;  Foster  d.  Walker,  2  Ala.  177.  See,  contra,  Giddings  v.  Coleman,  12 
N.  H.  153. 


311         ASSIGNMENT   OF   GARNISHEE'S    INDEBTEDNESS.     §   482 

correct,  his  disbelief  will  be  no  protection,  when,  after  he  has 
suffered  judgment  to  go  against  him  as  garnishee  of  his  orig- 
inal creditor,  he  is  called  upon  to  I'espond  to  the  assignee. 

§  482.  The  Form  and  Substance  of  the  Assignment,  or  other 
Contract,  by  which  Grarnishee's  Liability  may  be  Affected. — The 
form  in  which  the  contract  is  made  by  which  the  rights  of  the 
original  creditor  are  devested,  is  less  important  than  its  sub- 
stance. The  question  is  whether  the  contract  was  sufficient 
between  the  parties  to  work  a  transfer  of  interests,  so  as  to 
give  the  transferee  a  right  of  action  against  the  former  debtor 
of  the  transferrer.  Something  has  already  been  said  in  re- 
gard to  the  formalities  of  assignments  in  general,^  and  the  as- 
signment of  book  accounts  and  the  like  in  particular.'-^  It  was 
there  stated  in  substance  that  contracts  of  this  kind,  in  order 
to  be  available  in  cases  of  garnishment,  need  not  be  in  writing, 
or  evidenced  in  any  other  manner  tlian  was  requisite  to  their 
validity  for  general  purposes.  Where  the  contract  in  question 
is  one  entered  into  by  the  garnishee,  whereby  he  assumes  the 
liability  of  surety  or  guarantor  for  his  creditor,  we  have 
seen  that,  in  order  to  entitle  him  to  witldiold  payment  as  in- 
demnity for  the  collateral  obligation,  the  Jatter  need  not  be 
one  which  could  have  been  enforced  against  him  in  case  he 
should  plead  the  statute  of  frauds  in  defense.  It  need  not  be 
in  writing.^  The  manner  of  expressing  the  intention  to  assign 
may  not  be  sufficient  in  itself  to  prove  that  the  transfer  was 
made  ;  but  if  the  acts  done  were  with  such  an  intention,  the 
assignment  will  be  complete,  and  may  be  established  by  other 
competent  evidence.  The  delivery  of  a  written  evidence  of 
debt,  without  written  assignment,  is  held  sufficient.^  And  this 
is  true,  although  the  writing  so  transferred  is  not  negotiable 
by  delivery  or  otherwise.^  Thus,  where  the  lessor  delivered  a 
lease  upon  which  rent  was  due,  for  the  purpose  of  assigning 
and  setting  over  the  amount  so  due,  it  was  held  effectual  for 
that  purpose,  so  that  the  lessee  who  had  recognized  the  tran* 

^  Supra,  §465. 

2  Supra,  §  469. 

3  Supra,  §  477. 

*  King  v.  Murphy,  1  Stew.  228. 

6  Littlelield  v.  Smith,  17  Me.  327;  Byara  v.  Griffin,  31  Miss.  C03. 


§    482    ASSIGNMENT    OF    GARNISHEE'S    INDEBTEDNESS.  312 

sactlon  could  not  be  held  as  garnishee  In  an  action  bj  attach- 
ment against  the  lessor.^  The  delivery  of  a  judgment  is  hn- 
practicable,  and  for  this  reason  other  evidence  of  the  transfer 
may  be  relied  on,  as  between  the  garnishee  and  the  attacliujcnt 
2)laintiff.  For  tliis  purpose  the  assignment  would  be  held  com- 
j)lete  upon  evidence  much  less  conclusive  than  would  serve  as 
against  a  subsequent  assignee  without  noticed 

Equitable  assignments,  by  means  of  a  bill  of  exchange,  have 
also  been  noticed,  and  it  appears  that  a  distinction  Is  made  be- 
tween drafts  for  the  entire  sum  due,  and  those  made  for  a 
part  of  such  sum.  lu  tlie  one  case,  the  assignment  Is  held 
complete  without  acceptance,  and  In  the  other  that  until  ac- 
ceptance there  is  no  assignment  of  the  debt.^  There  is,  liow- 
ever,  some  conflict  of  authority  upon  this  question,  which 
cannot  be  allowed  to  pass  unnoticed.  It  is  quite  generally 
held,  that  a  draft  for  an  entire  debt  due  from  the  drawee 
to  the  drawer,  specifying  the  debt,  Is  an  equitable  assignment, 
and  binds  tlie  drawee,  as  soon  as  he  receives  notice  thereof.^ 
After  presentment  of  a  bill  for  the  entire  debt,  a  subsequent 
assignment  or  attachment,  and  service  of  summons  of  garnish- 
ment, will  not  defeat  the  equitable  right  of  the  holder  to  have 
the  funds  appropriated  to  the  payment  of  the  bill.^'^  In 
Wheatlcy  v.  Strobe, ^^  Field,  J.,  thus  expresses  the  generally 
accepted  doctrine :  "  The  order,  though  not  available  as  a  bill 
of  exchange  against  Strobe,  for  want  of  acceptance,  o[)erated 
as  an  equitable  assignment  of  the  demand  of  Wheatley  to 
Ilowel.  It  was  given  for  an  antecedent  debt,  and  for  the  full 
amount  of  the  demand  against  Strobe.  The  consideration  was 
valuable,  and  there  was  no  splitting  of  the  amount  due  Into  dis- 
tinct and  different  causes  of  action  ;  and  In  such  cases  It  Is 
well  settled  that  an  order,  whether  accepted  or  not,  operates  as 

6  Dennis  v.  Twitcliell,  10  Mete.  (Mass.)  180. 

7  Porter  v.  BuUard,  26  Me.  448. 

8  Supra  §  4G5. 

9  MandeviUe  ».  Welch,  5  Wheat  277;  McMenomy  v.  Ferrers,  3  Johns.  72; 
Risley  v.  Smith,  G4  N.  Y.  57G;  Bank  of  Commerce  v.  Bogy,  44  Mo.  18;  Ander- 
fion  w.  De  Soer,  G  Gratt.  3G4;  Cutts  v.  Perkins,  12  Mass.  209;  Christmas?;.  Rus- 
sell. 14  Wall.  84;  Parker  v.  Syracuse,  31  N.  Y.  37G;  Lowery  v.  Steward,  25  N. 
Y.  241;  Gibson  v.  Cooke,  20  Pick.  15;  32  Am.  Dec.  194. 

10  Wheatley  v.  Strobe,  12  Cal.  92;  Roberts  v.  Austin,  26  Iowa,  317. 
11 12  Cal.  92,  97. 


313         ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.     §   482 

an  assignment  of  the  debt  or  fund  against  which  it  is  drawn. 
The  want  of  a  written  acceptance  does  not  affect  the  right  of 
Howel  to  the  money  due,  but  only  to  the  mode  of  enforcing 
it.  With  the  acceptance  he  could  have  sustained  an  action 
upon  the  order ;  without  it,  he  must  recover  upon  the  original 
demand,  by  force  of  the  assignment."  '^  The  general  reason 
given  by  most  of  the  authorities  cited  for  holding  a  draft  for 
the  whole  amount  of  the  debt  to  be  an  equitable  assignment, 
is  that  it  was  so  intended.  But  thei-e  are  other  decisions,  tc 
the  effect  that  a  bill  of  exchange,  even  for  the  entire  sum  prior 
to  acceptance,  does  not  of  itself  operate  as  such  an  assignment, 
so  as  to  give  the  holder  of  the  bill  a  right  of  action  against 
the  drawee. ^^  The  difference  of  opinion,  however,  seem? 
more  in  respect  to  the  construction  given  to  the  express  term? 
of  the  contract,  and  whether  it  authorizes  a  recovery  from  the 
drawer  in  certain  forms  of  procedure.  The  decided  weight  of 
authority  is  in  favor  of  the  doctrine  of  equitable  assignment 
by  bill  of  exchange,  when  the  cause  of  action  is  not  split. 

When  the  bill  has  been  accepted,  there  can  be  no  -doubt  as 
to  the  effect  upon  the  prior  indebtedness,  whether  it  be  drawn 
for  the  whole  or  a  part  thereof.  The  drawer  has  bound  himself 
to  the  holder  by  a  direct  promise,  from  which  he  cannot  be 
absolved  by  service  of  garnishment  at  the  suit  of  the  drawer's 
creditors.  But  when  the  bill  or  order  is  drawn  for  a  part  of 
the  debt  due,  the  contrariety  of  judicial  opinion  as  to  its  opera- 
tion is  more  decided,  and  the  weight  of  authority  is  not  so  eas- 
ily determined.  There  is  no  doubt  about  the  proposition  that  a 
bill  of  exchange  drawn  for  a  portion  of  a  debt  or  fund  will  not 
give  the  holder  a  right  of  action  at  common  law  for  the  sura 
thus  appropriated,  until  the  drawee  has  formally  accepted  the 
bill  and  bound  himself  by  a  promise  to  pay  it.'*  But  where 
the  bill  or  order  is  non-negotiable,  it  is  held  in  numerous  cases 

12  Citing  Mandeville  v.  Welch,  5  Wheat.  227;  Corser  v.  Craig,  1  Wash.  C.  C. 
427;  BlLn  v.  Pierce,  20  Vt.  25;  Wheeler  v.  Wheeler,  9  Cow.  34;  Nesmith  v. 
Drum,8Watts  &  S.  9;  42  Am.  Dec.  2C0;  Eobins  ?j.Bacon,3Greenl.  346;  Adam- 
son  V.  Robinson,  1  Pick.  461.    See  also  Kahnweiler  v.  Anderson,  78  N.  C.  136. 

13  Bush  V.  Foote,  58  Miss.  5;  38  Am.  Rep.  310;  First  Nat'l  Bank  v.  Dubuque 
etc.  R.  Co.,  52  Iowa,  378;  35  Am.  Rep.  280;  Shand  v.  Du  Boisson,  18  Eq.  Cas. 
L.  R.  283. 

"  Weiustock  v.  Bellwood,  12  Bush.  139. 


§   482  ASSIGNMENT   OF   GARNISHEE'S   INDEBTEDNESS.  814 

that  it  amounts  to  an  equitable  assignment  jiro  tanto,  from  the 
time  the  drawee  receives  notice  thereof,  without  regard  to  for- 
mal acceptance.^^ 

15  Christmas  v.  Russell,  14  Wall.  84;  Brill  v.  Tuttle,  81  N.  Y.  457;  37  Am. 
Eep.  515;  Ehrichs  v.  De  Mill,  75  N.  Y.  370;  Parker  v.  Syracuse,  31  N.  Y.  376; 
Brooks  V.  Hatch,  6  Leigh.  534;  Knapp  v.  Alvord,  10  Paige,  205;  40  Am.  Dec. 
241;  Bradley  w.  Boot,  5  Paige,  641;  Eow  v.  Dawson,  1  Vesey,  331;  Yeates  v. 
Groves,  1  Vesey,  Jr.,  281. 


CHAPTER  XXXVIII. 

GARNISHMENT  OF  DEBTS  BEFORE  MATURITY. 

§  483.    Indebtedness  at  the  time  of  service,  or  prior  to  answer. 

§  484.    Debts  payable  in  the  future. 

§  485.    Garnishee  not  required  to  pay  until  his  debt  is  payable. 

§  483.  Indebtedness  at  the  Time  of  Service,  or  Prior  to  An- 
swer.— The  statute  under  which  the  service  of  summons  in 
garnishment  is  made,  generally  prescribes  that  any  one  may  be 
served  with  effect  who  is  indebted  to  the  principal  defendant. 
In  some  instances,  the  statute  is  more  particular  in  its  provis- 
ions, or  it  is  construed  by  the  Courts  to  apply  only  to  parties 
indebted  at  the  time  of  service  of  the  summons.^  In  others,  the 
summons  takes  effect  upon  debts  owing  up  to  the  time  of  an- 
swering.^ In  every  case,  whatever  be  the  time  to  which  the 
service  of  the  summons  operates  upon  debts,  whether  limited 
by  the  date  of  service  or  the  date  of  answer,  it  must  be  a  debt 
absolutely  existing  at  such  time,  and  not  one  which  is  merely 
contingent,  or  expected  to  arise  from  future  transactions.^ 
Thus,  where  there  was  an  unpaid  balance  on  a  lot  of  logs  to 
be  delivered  by  defendant  to  the  garnishee  at  his  boom,  and 
there  was  nothing  to  show  that  anything  would  be  due  defend- 
ant until  such  logs  were  delivered,  it  was  held  that  until  this 
condition  of  the  contract  was  complied  with,  there  was  no  in- 
debtedness that  could  be  affected  by  garnishment.^  So,  where 
there  is  any  future  contingency  upon  which  the  liability  de- 
pends, any  act  to  be  done,  or  work  to  be  completed  on  a  con- 
tract which  is  not  apportionable,  there  will  be  no  indebtedness 
until   such  contract  is    completed.^      Hence,    where    by    the 

1  Childress  V.  Dickens,  8  Yerg.  113;  Morris  v.  Union  Pac.  R.  Co.,  56  Iowa,  135. 
See  King  v.  Vance,  46  Ind.  246. 

2  Wilcus  I'.  King,  87111.  107. 

8  Fellows?).  Smith,  131  Mass.  363;  Coburn  v.  City  of  Hartford,  38  Conn.  290. 
*  Wheeler  v.  Day,  23  Minn.  554.    See  Wyman  v.  Hichborn,  6  Cush.  2(54. 
5  Coburn  i'.  Hartford,  38  Conn.  290;  Potter  v.  Cain,  117  Mass.  2S8;  Godfrevi'. 
Macomber,  128  Mass.  188;  Larrabee  v.  Walker,  71  Me.  4    . 


§    484:     GARNISHMENT   OF   DEBTS    BEFORE   MATURITY.  316 

terms  of  a  contract,  certain  work  was  to  be  paid  for  from  time 
to  time,  as  the  work  progressed,  upon  "  certificates  of  the  en- 
gineer in  charge,"  the  whole  amount  to  be  due  and  2)ayable  on 
the  completion  of  the  job;  and  at  the  date  of  service  of  sum- 
mons, tliere  Avas  work  still  to  be  paid  for,  of  the  value  of 
^3,103.83,  and  only  work  of  the  value  of  ^449.50  to  be  done 
to  complete  the  contract ;  but  there  had  been  no  engineer's 
certificate  issued  since  the  last  payment,  it  was  Iicld  that 
there  was  no  absolute  indebtedness  for  the  balance  of  the  con 
tract  jirice  until  the  entii-e  work  was  completed,  and  hence  it 
could  not  be  attached  by  garnishment.^  The  doctrine  upon 
which  the  Courts  proceed  is,  that  nothing  can  be  attached  be- 
fore it  exists,  and  that  a  credit  has  no  existence  until  there  ex- 
ists an  obligation  to  pay.  The  Courts  do  not  seem  inclined  to 
relax  the  rule  to  the  extent  that  it  has  been  modified  in  favor 
of  assignments.  While  a  mere  possibility  of  indebtednes? 
cannot  be  assigned,  it  has  been  frequently  held  that  an  indebt- 
edness depending  for  its  existence  upon  the  continuance  of  em- 
ployment, into  which  the  creditor  party  had  already  entered, 
might  be  effectually  transferred  before  the  same  was  payable 
— that  wages  might  be  assigned  before  they  were  earned,  pro- 
vided the  workman  had  entered  upon  the  employment  from 
which  the  waives  were  to  arise. '^  But  nothinij  can  be  found  In 
the  books  favoring  the  garnishment  of  future  debts,  even 
where  an  assignment  of  this  sort  is  brouirht  into  direct  conflict 
with  an  attachment  of  the  same  kind,  or  one  levied  after  the 
wages  are  earned,  and  an  absolute  debt  created.  There  can  be 
no  attachment  until  there  is  an  obligation  on  the  part  of  the 
garnishee  to  ])aj  the  principal  defendant.^ 

§  484.  Debts  Payable  in  the  Future. — But  unless  there  is 
something  in  the  statute  more  restrictive  than  the  provision 
that  summons  of  garnishment  can  only  be  served  upon  persons 
at  the  time  indebted  to  the  defendant,  it  is  not  essential  that 

6  Early  v.  Redwood  City,  57  Cal.  193.  See  Norris  v.  Burgoyne,  4  Cal.  409; 
Coburn  v.  Hartford,  3S  Conn.  290. 

'  Weed  V.  Jewett,  2  Mete.  (Mass.)  608;  37  Am.  Dec.  115;  Johnson  v.  Pace,  78 
111.  143. 

8  Potteri'.  Cain,  117  Mass.  238;  Baltimore  etc.  R.  Co.  v.  Gallaliue,  14  Gratt. 
503;  Wyman  v.  Hichborn,  G  Cush.  2G4. 


817  GARNISHMENT   OF   DEBTS    BEFOKE   MATURITY.     §    484 

the  debt  sliall  be  payable  at  once.  The  mere  fact  that  the 
demand  is  not  yet  mature,  does  not  affect  the  existence  of  the 
debt.  There  are  no  contingencies  upon  which  the  obligation 
to  pay  depends,  when  nothing  but  the  lapse  of  time  is  neces- 
sary to  entitle  the  cx'editor  to  legal  process  to  enforce  his  claim 
against  the  debtor.^ 

The  process  of  garnishment  would  rarely  serve  any  useful 
purpose  as  a  means  of  enforcing  the  payment  of- debts,  if  only 
debtors  could  be  garnished  after  their  indebtedness  had  reached 
maturity.  If  the  debt  was  not  paid  at  maturity,  it  would  be 
in  most  cases  for  the  reason  that  the  debtor  was  unable  or 
unwilling  to  pay,  and  the  attaching  creditor  would  in  every 
case  of  garnishment  be  driven  into  a  vexatious,  and  probably 
a  fruitless  contest  with  the  garnishee,  as  well  as  with  his  own 
immediate  debtor.  The  rulinirs  of  the  Courts  in  construino" 
the  different  statutes  that  subject  all  existing  indebtedness  to 
garnishment,  are  so  uniformly  in  favor  of  applying  their  pro- 
visions to  debts  not  due,  that  the  doctrine  may  now  be  regard- 
ed as  established  by  authority.^  Where  the  garnishee  is  a 
subscriber  to  the  stock  of  a  corporation,  it  is  held  that  he  may 
be  garnished  in  an  action  against  the  corporation,  in  respect  tO' 
any  unpaid  installments  of  the  subscription  price,  irrespective 
of  whether  the  corporation  has  made  a  call  for  such  balance, 
or  it  is  under  the  by-laws  presently  payable,  or  not.^  But  it 
is  held  differently  in  Alabama,  where  a  stockholder  is  not  re- 
garded as  debtor  to  the  corporation,  by  virtue  of  his  subscrip- 
tion, except  as  payment  is  called  for.^  Where,  by  the  terms 
of  a  promissory  note,  the  maker  reserved  the  right  of  payinfr 
the  principal  or  not,  at  his  option,  so  long  as  he  continued  to 
pay  the  Interest,  and  the  statute  provided  that  the  garnishee 
should  not  be  compelled  to  pay  the  debt  In  respect  to  which 

1  Cottrell  V.  Vamum,  5  Ala.  229  ;  Dunnegan  v.  Byers,  17  Ark.  492  ;  Fay  v. 
Smith,  25  Yt,  GIO  ;  Fulweiler  v.  Hughes,  17  Pa.  St.  440;  Pace  v.  Jones,  3  Mur- 
phy, 25G  ;  Stuart  v.  West,  1  Harr.  &  J.  536. 

2  Walker  v.  Gibbs,  2  Dall.  211  ;  Fulweiler  v.  Hughes,  17  Pa.  St.  440;  Willard 
V.  Sheafe,  4  Mass.  235  :  King  v.  Vance,  4(3  Ind.  24G  ;  Peterson  v.  Sinclair,  Si  Pa. 
St.  250 ;  Sayward  v.  Drew,  G  Me.  2G3  ;  Steuart  v.  West,  1  Harr.  &  J.  53G  ;  Cot- 
trell V.  Varnum,  5  Ala.  39G;  Dunnegan  v.  Byers,  17  Ark.  492;  Nichols  v.  Sco- 
field,  2  B.  I.  123  ;  Peace  v.  Jones,  3  Murphy,  256. 

3  Peterson  v.  Sinclair,  83  Pa.  St.  250. 
*  Bingham  v.  Rushing,  5  Ala.  403. 


§   485     GAENISHMEXT   OF   DEBTS    BEFORE   MATURITY.  318 

he  was  summoned  before  the  time  appointed  by  the  contract, 
the  Court  decided  that  the  crarnishee  should  be  char^-ed.^ 

It  is  not  every  formality  required  that  will  be  regarded  as 
a  contingency  such  as  prevents  the  debt  from  the  garnishee  to 
the  defendant  from  being  absolute  and  unconditional,  within 
the  meaning  of  the  rulings  that  exclude  uncertain  demands 
from  the  class  of  garnishable  credits.  Thus,  it  was  held  where 
the  time  when  a  debt  would  become  payable  depended  upon  a 
notice  to  be  given  by  the  defendant  to  the  garnishee,  that  the 
credit  could  be  attached,  though  no  such  notice  had  been 
given.^ 

There  are  certain  exceptions  to  the  prevailing  doctrine  upon 
this  subject.  Thus  in  Iowa,  in  order  to  give  the  Court  juris- 
diction when  the  service  of  original  process  is  by  publication, 
something  must  be  seized.  And  though  it  is  held  that  gar- 
nishment  of  a  debt  due  would  be  such  a  seizure,  it  is  there 
decided  that  unless  it  appears  that  the  debt  was  due  at  the 
time  of  service,  the  Court  will  not  have  acquired  the  necessary 
jurisdiction,  though  it  appear  that  the  debt  was  due  when  the 
answer  was  filed.'  The  statutes  of  other  States  may  modify 
the  rule  in  its  application  to  particular  cases  ;  but  in  Tennessee, 
without  any  peculiarity  of  the  statute  which  I  have  been  able 
to  discover  thus  far,  it  is  held  that  a  garnishee  can  only  be 
charged  in  respect  to  indebtedness  due  and  payable  when  the 
process  is  served  upon  him.® 

§  485.  Garnishee  not  Required  to  Pay  nntil  his  Debt  is  Pay- 
able.— xTotwithstanding  the  rule  that  renders  the  garnishee 
chargable  in  respect  to  debts  which  he  is  under  no  present 
obligation  to  pay,  it  cannot  be  claimed,  and  is  not  claimed,  in 
any  of  the  decisions  cited  in  the  next  preceding  section,  that 
the  judgment  thus  obtained  may  be  prematurely  enforced 
against  him.  He  cannot  be  forced  to  pay  the  debt  in  satisfac- 
tion of  the  judgment  against  him  as  garnishee,  sooner  than  he 
would  have  been  required  to  pay  to  his  original  creditor.^ 

6  Fay  V.  Smith,  25  Vt.  610. 

6  Clapp  V.  Hancock  Bank,  1  Allen,  394. 

T  Morris  v.  Uuion  Pac.  E.  Co.,  56  Iowa,  135. 

8  Childress  t\  Dickens,  8  Yerg.  113  ;  McMnn  V.  Hall,  2  Tenn.  328. 

1  See  cases  cited  supra.  §  484, 


319  GAKNISHMENT   OF   DEBTS    BEFORE   MATURITY.     §   485 

Nevertheless,  peculiar  circumstances  may  arise  where  he 
may  be  required  to  pay  sooner  than  he  could  have  been  called 
upon  under  the  exact  terms  expressed  in  the  contract.  Thus, 
where  funds  were  collected  by  a  county  by  means  of  taxation, 
to  pay  interest  on  certain  bonds,  and  ponding  litigation  by  the 
bondholder  against  the  County  as  to  the  validity  of  the  bonds, 
the  State  legislature  authorized  the  lending  of  the  money, 
without  stating  any  specific  term  for  which  the  loan  should 
be  made,  and  the  garnishee  was  the  borrower  for  a  term  of 
years,  it  was  held  that  the  debt  was  payable  on  demand,  after 
the  determination  of  the  suit,  as  the  legislature  could  not  have 
autliorized  the  loan  for  a  longer  time,  without  impairing  the  ob- 
ligation of  the  contract  with  the  bondholders,  for  whose  pay- 
ment the  money  was  collected  by  the  county.^ 

1  George  v.  Kails  County,  3  McCrary  C.  C.  181. 


CHAPTER  XXXIX. 

GARXISHEES  JOIXTLT  INDEBTED,  AND  CREDITS  JOINTLY 
OWNED. 

§  486.  Garnishee  jointly  and  severally  indebted. 

§  487.  Garnishee  jointly  indebted. 

§  488.  Garnishees  severally  indebted. 

§  489.  Credits  jointly  and  severally  owned  by  defendants. 

§  490.  Partnership  credits. 

§  491.  Credits  jointly  owned  by  defendants,  but  not  as  partners. 

§  486.  Garnishees  Jointly  and  Severally  Indebted. — When 
the  party  summoned  as  garnishee  is  jointly  and  severally  in- 
debted with  others,  whether  he  may  be  called  upon  to  respond 
individually,  or  his  co-debtors  shall  also  be  summoned  in  the 
same  proceeding,  is  merely  a  question  of  policy,  except  where 
the  statute  requires  that  all  shall  be  made  parties.^  Ordinari- 
ly, the  creditor  may  proceed  against  one  or  all  of  several  who 
are  indebted  to  him  in  this  manner  ;  and  the  attaching  creditor 
may  summon  such  co-debtors  by  the  same  rule.  A  judgment 
obtained  against  one  would  be  for  the  entire  amount  that 
might  have  been  recovered  by  the  defendant,  provided  this  be 
within  the  amount  of  the  judgment  in  the  principal  action. 
This  follows  from  the  representative  attitude  of  the  plaintiff 
towards  the  garnishee.  He  stands  in  the  place  of  the  defend- 
ant,  in  respect  to  the  hitter's  demand  against  the  party  sum- 
moned.'-^ The  inducement  to  summon  one  of  several  co-debt- 
ors, rather  than  all,  might  be  that  service  could  not  be  had 
upon  all,  or  that  but  one  was  considered  solvent.  Such  a 
course,  however,  would  be  impolitic  on  the  part  of  the  plain- 
tiff in  attachment,  when  it  was  practicable  to  obtain  service 
upon  all,  for  the  reason  that  the  service  upon  one  will  not  in 
every  case  prevent  the  payment  of  the  debt  by  the  others  to 
the  original  creditor,  pending  the  proceedings.     Payment  of 

1  Infra,  §  487. 

2  Macomber  v.  "SVright,  35  Me.  156;  Travis  r.  Tartt,  8  Ala.  574. 


321  GARNISHEES   JOINTLY   INDEBTED.  §   486 

the  debt  by  either  of  the  debtors  who  has  not  been  served  with 
process  of  garnishment  will  not  only  entitle  him  to  a  discharge 
in  case  of  subsequent  service,  upon  the  ground  that  prior  pay- 
ment is  a  complete  defense  to  judgment  against  the  garni- 
shee,^ but  it  operates  to  discharge  the  debtor  previously  served 
with  summons.*  It  is  obvious  that  were  suit  brought  against 
one  of  the  co-debtors  by  the  creditor,  the  action  could  not  be 
maintained  after  the  debt  had  been  paid  in  full  by  the  debtor 
who  had  not  been  joined  in  the  suit  as  a  defendant.  And  it  is 
equally  clear  that  the  attaching  creditor  can  only  be  subrogated 
to  the  rights  of  his  debtor — certainly,  nothing  greater.^ 

The  only  possible  exception  to  the  principle  that  several 
debtors  who  are  jointly  and  severally  indebted  cannot  be  bound 
in  respect  to  such  debt  when  only  one,  or  any  number  less  than 
all,  are  garnished,  is  where  it  is  a  j^artnership  debt,  and  partic- 
ularly where  some  of  the  members  of  the  firm  are  non-resi- 
dents. Under  these  circumstances,  where  the  business  of  the 
copartnership  was  carried  on  within  the  State,  it  was  held  that 
service  upon  the  resident  partners  would  bind  the  funds  of  the 
defendant  in  the  hands  of  the  firm.*"  It  may  be  claimed  for 
partnership  debts  that  their  situs  is  the  place  of  residence  of 
the  partnership,  and  that  is  Avhere  the  business  of  the  firm  is 
carried  on,  though  this  is  contrary  to  the  general  rule  by  which 
Buch  questions  are  determined.  The  situs  of  personal  property, 
including  credits,  is  generally  held  to  be  the  place  of  residence 
of  the  owner ;  and  the  place  of  residence  of  a  person  is  where 
he  resides,  and  not  where  he  carries  on  business.  Neverthe- 
less, the  Courts  have  decided  In  several  instances  that  partners 
may  be  garnished  in  respect  to  their  firm  indebtedness,  by 
service  of  process  upon  the  resident  members.'^     But  this  is  a 

a  Cochran  v.  Smith,  1  Sanclf.  Ch.  148;  Getchell  v.  Chase,  12i  Mass.  36G.  See 
Terry  v.  Lindsay,  1  Stew.  &  Port.  317,  where  it  is  held  that  an  answer  by 
one  of  two  executors  will  not  authorize  judgment  against  both. 

*  Jewett  V.  Bacon,  6  Mass.  GO. 

5  Ballio  V.  Paisset,  8  Mart.  N.  S.  336;  19  Am.  Dec.  185;  Robinson  v.  Hall,  3 
Met.  (Mass.)  .^Ol;  Sabin  v.  Cooper,  15  Gray,  532. 

6  Parker  v.  Danforth,  IG  Mass.  299.  See  Peck  v.  Barnum,  24  Vt.  75.  But  it 
h  s  been  lield  that  the  answer  of  one  member  of  a  partnership  will  bind  the 
firm. — Anderson  v.  Wanzer,  5  How.  587. 

"  Atkins  V.  Prescott,  10  N.  H.  120;  Warner  v.  Perkins^  8  Gush.  518.    Contra, 
Pettes  V.  Spaulding,  21  Vt.  G6. 
XL  Attach.— 21, 


§    487  GARNISHEES   JOINTLY    INDEBTED.  322 

principle  that  will  not  bear  extension.  The  debt  may  be  con- 
tracted by  the  non-resident  partners,  and  they  may  have  pro- 
vided for  its  payment.  The  creditor  may  be  a  resident  of  the 
State  where  the  debt  was  contracted,  and  have  the  means  of 
enforcing  payment  from  the  members  of  the  copartnership  in 
the  same  jurisdiction.  There  is  greater  likelihood  in  such 
cases  of  payment  being  made  by  the  partners  upon  whom 
process  is  not  served,  in  ignorance  of  the  proceeding,  than 
there  would  be  were  the  partners  all  residents  of  the  place 
where  the  business  of  the  firm  was  carried  on.  The  possibility 
of  the  existence  of  these  facts  in  connection  with  a  particular 
case,  will  readily  suggest  the  impropriety  of  relying  upon  the 
doctrine  laid  down  in  tlie  authorities  last  cited,  as  a  rule  for  all 
casea  of  garnishment  in  respect  to  partnership  debts,  where 
some  of  the  partners  cannot  be  served  on  account  of  non-resi- 
dence. Indeed,  in  one  of  the  States  where  this  doctrine  is  ac- 
cepted and  applied  to  a  case  of  jDartners  resident  in  a  sister 
State  of  the  Union,  it  is  repudiated  where  the  partners  who 
were  not  served  resided  in  a  foreign  country.® 

It  is  a  different  proposition,  whez'e  the  surviving  member  of 
a  firm  is  served  in  his  individual  capacity,  and  answers  for  the 
firm.  In  such  case,  there  can  be  no  serious  objection  to  the 
garnishee  being  held  for  the  firm  debt.^ 

"When  one  of  two  partners  is  summoned  as  garnishee  in  an 
action  against  a  firm  creditor,  he  cannot  truly  say  that  he  is  not 
indebted  to  defendant. ^'^  And  yet  it  is  held  that  one  member 
of  a  partnership  cannot  be  charged  alone  as  garnishee  in  re- 
sj^ect  to  a  firm  debt.^^  But  it  is  held  otherwise  wdiere  he  un- 
dertook to  answer  for  himself  and  partner. ^^ 

§  487.  Garnishees  Jointly  Indebted. — When  garnishees  are 
jointly  indebted,  or,  under  the  statute,  the  debt  can  only  be 
sued  for  by  joining  all  the  debtors  as  defendants,  advantage 
may  be  taken  of  a  failure  to  join  them  as  garnishees,  in  the 

8  Kidder  i\  Packard,  13  IMass.  83. 

9  Brealsford  i:.  Mead,  1  Yeates,  488. 
lOMacomber  v.  Wright,  35  Rle.  156. 

"  EUicott  V.  Smith,  2  Cranch  C.  C.  542.    See  Bulfinch  v.  "Winchenbach,  3  Al- 
len, 161. 
12  Speak  V.  Kinsey,  17  Tex.  301. 


323  GARNISHEES   JOINTLY   INDEBTED.  §   487 

same  manner  as  in  ca^  they  were  sued  separately  by  the  cred- 
itor.^ In  some  of  the  States  it  is  held  that  a  failure  to  summon 
as  garnishees  all  the  members  of  a  copartnership,  when  the 
garnishment  is  in  respect  to  a  partnership  debt,  would  entitle 
the  partner  served  with  process  to  a  discharge.^  Elsewhere, 
the  omission  must  be  taken  advantage  of  by  the  party  served, 
at  an  early  stage  of  the  proceeding ;  otherwise  it  will  be  con- 
sidered as  waived,  and  the  judgment  against  the  garnishee 
upon  whom  service  is  obtained  cannot  be  avoided.^  So  in  Con- 
necticut, where  judgment  was  rendered  against  several  part- 
ners as  garnishees,  notwithstanding  the  failure  to  proceed 
against  their  copartner,  and  the  judgment  thus  obtained  was 
paid  by  the  firm,  it  was  held  that  they  could  not,  on  account 
of  such  failure,  be  charged  in  a  subsequent  garnishment.  It 
was  claimed  by  the  subsequent  attaching  creditor  that  the  non- 
joinder of  one  of  the  partners  as  garnishee  should  have  been 
taken  advantage  of  by  the  others,  and  for  their  failure  to  do 
so  the  judgment  against  them  was  void,  and  no  protection 
against  his  proceeding  in  which  all  had  been  summoned.  But 
the  payments  made  were  held  to  be  a  good  defense  to  the  pro- 
ceeding, or  any  subsequent  action  against  the  garnishees.^  In 
Pennsylvania,  notwithstanding  the  rule  that  one  of  two  or  more 
partners  might  plead  the  non-joinder  In  abatement,  when  sued 
separately  for  a  partnership  debt.  It  was  decided  that  the  rea- 
son of  the  plea  did  not  apply  to  attachments.  For  this  reason 
such  a  plea  would  not  be  entertained  when  Interposed  for  fail- 
ure to  join  one  of  several  partners  as  garnishee,  when  the  debt 
was  contracted  by  the  firm.^ 

The  rule  that  when  it  is  practicable  to  proceed  against  all 
of  those  who  are  indebted  as  partners,  whether  in  a  direct  suit 
or  as  garnishees,  they  should  all  be  joined  as  defendants  or 

1  Fairclnlcl  v.  Lampron,  37  Vt.407. 

2  Rixr.  Elliott,  1 N.  H.  184  ;  Atkius  v.  Prescott,  ION.  H.  120  ;  Hudson  w.  Hunt, 
5  N.  n.  538  ;  Ellicott  r.  Smith,  2  Cranch  C.  C.  543  ;  Hoith  v.  Pfeifle,  42  Mich. 
31  ;  AVellover  v.  Soule,  30  Mich.  481 ;  Pettes  v.  Spalding,  21  Vt.  C6  ;  Haskins  v. 
Johnson,  24  Ga.  G25  ;  Wilson  v.  Albright,  2  G.  Greene,  125.  See  Warren  i'.  Per- 
kins, 8  Gush.  518. 

3  Iloyt  V.  Ptobinson,  10  Gray,  371.  See  Hathaway  i;.  Russell,  16  Mass.  473; 
Sabiu  V.  Cooper,  15  Gray,  532. 

*  Ilowley  V.  Atherton,  39  Conn.  309. 

''  Brealsford  v,  Meade,  1  Yeates,  488.  • 


§    488  GARNISHEES    JOINTLY    INDEBTED.  324 

garnishees,  is  a  very  reasonable  one.  It  is  equally  reasonable, 
that  when  one  or  more  of  such  partners  are  beyond  the  reach 
of  process,  the  plaintiff  may  elect  to  sue  in  the  one  case,  or 
garnish  in  the  other,  those  who  reside  "within  the  jurisdiction. 
But  it  is  quite  a  different  matter  if  the  effect  claimed  for  ser- 
vice upon  one  person  is,  that  it  gives  the  Court  jurisdiction  to 
render  judgment  against  another,  even  though  that  other  be  a 
])artner  of  the  paily  served.*^  It  may  be  convenient  to  regard 
a  copartnership  as  a  legal  person,  to  be  brought  into  Court  by 
service  of  process  upon  any  one  of  its  members,  but  such  a 
conception  is  so  far  inconsistent  with  the  general  idea  of  the 
partnership  relation,  that  a  judgment  thus  obtained  must  be 
regarded  as  an  attempt  to  adjudicate  the  rights  of  a  party  who 
has  not  had  his  day  in  Court.  Where  the  objection  taken  is, 
that  one  of  the  partners  was  not  served  with  process  of  gar- 
nishment intended  to  be  served  on  the  partnership,  there  might 
be  some  room  for  a  relaxation  of  the  rule  that  the  garnishee 
cannot  be  charged  on  a  voluntary  appearance. 

§  488.  Garnishees  Severally  Indebted. — Parties  indebted  to 
the  same  defendant  may  be  associated  in  the  same  writ,  and 
summoned  in  the  same  proceeding,  although  they  are  not 
jvMnt  debtors  in  any  view  of  the  case.  But  in  such  case,  the 
liability  of  each  is  to  be  determined  according  to  his  individual 
relations  to  the  defendant.  Neither  can  object  to  any  irregu- 
larities of  process  served  upon  another,  nor  can  they  make  any 
defenses  except  such  as  would  apply  to  the  case  of  each,  if 
the  others  Avere  not  summoned.  The  fact  that  they  are  not 
jointly  indebted  cannot,  in  any  event,  be  relied  upon  for  the 
purpose  of  securing  the  discharge  of  either.^  And  even 
where  they  are  summoned  as  jointly  and  severally  liable,  the 
disproof  of  joint  liability  would  not  prevent  their  being 
charged  as  severally  liable.  Nor  would  those  found  to  be  sev- 
erally indebted  be  entitled  to  a  discharge,  for  the  reason  that 
some  of  those  summoned  in  the  same  proceeding  as  co-debtors 
succeeded  in  showing  that  they  were  neither  jointly  nor  sever- 
ally liable  for  the  debt.  In  respect  to  which  they  were  all  sum- 

6  Anderson  v.  "Wanzer,  5  How.  (Miss.)  37  Am.  Dec.  170. 
1  Curry  v.  "Woodward,  53  Ala.  371. 


825  GARNISHEES    JOINTLY   INDEBTED.  §   489 

moned.  Thus,  where  three  persona  are  summoned  as  garnldh- 
ees  in  respect  to  a  partnership  indebtedness  to  the  defend- 
ant, and  the  debt  is  admitted  or  established  by  evidence,  but 
there  is  a  failure  of  proof  as  to  the  connection  of  one  of  the 
garnishees  with  the  copartnership,  this  will  not  permit  those 
who  are  indebted  f  i*om  beino^  charired. 

§  489.  Credits  Jointly  and  Severally  Owned  by  Defendants. 
— When  there  are  several  defendants,  the  credits  attached  may 
be  owned  jointly  or  severally.  The  garnishees  may  be  one  or 
all  indebted  to  one  or  all  of  the  defendants.  Such  of  the  gar- 
nishees (where  several  are  served)  as  are  indebted  to  either  of 
the  defendants,  or  to  all  of  them,  vv^ill  be  charged  to  the  extent 
of  such  indebtedness,  subject  to  the  judgment  to  be  recovered 
in  the  principal  action.^  The  fact  that  both  defendants  and  gar- 
nishees are  numerous  need  not  create  any  confusion  of  rights, 
when  it  is  remembered  that  the  purpose  of  the  garnishment  is 
to  reach  attachable  effects  and  credits  owned  by  the  defend- 
ants. It  is  of  no  consequence  whether  such  effects  or  credits 
are  owned  jointly  or  severally,  provided  they  may  be  taken 
under  an  execution  issued  on  any  judgment  the  plaintiff  could 
obtain  in  the  action.  If  a  case  can  be  stated  in  which  the 
judgment  recovered  against  several  defendants  would  only  au- 
thorize an  execution  against  property  owned  by  them  jointly, 
it  will  furnish  an  example  where  the  garnishee,  in  order  to 
be  charged,  should  be  indebted  to  all  the  defendants ;  other- 
wise it  must  be  taken  as  true,  that  a  proof  of  indebtedness  to 
any  one  of  the  defendants  would  entitle  the  plaintiff  to  judg- 
ment aijainst  the  garnishee  so  indebted.^ 

The  only  material  feature  of  the  relation  of  defendants  with 
the  garnishees,  in  which  the  number  of  the  former  may  be  said 
to  affect  the  liability  of  the  latter,  is  that  Avhich  concerns  the 
relations  between  the  defendants  themselves,  and  this  only 
when  such  relations  embrace  the  garnishee.  If  the  demand 
against  the  defendants  is  owing  by  them  as  partners,  the  prop- 

1  Thompson  v.  Taylor,  13  Me.  420;  Parker  v.  Guillow,  10  N.  H.  103;  Caignett 
r.  Gillband,  2  Yeates,  35. 

2  Caignett  v.  Gillband,  2  Yeates,  35;  Stone  v.  Dean,  5  N.  H.  502;  Locket  v 
Child,  11  Ala.  G40. 


§   490  GARNISHEES    JOINTLY    INDEBTED.  326 

erty  of  either  partner  may  be  levied  on  under  the  judgment, 
precisely  as  though  their  joint  indebtedness  existed  without 
any  partnership  relation  between  them.  For  the  same  reason, 
the  property  or  credits  of  either  could  be  reached  by  garnish- 
ment in  the  hands  of  a  third  party.  Nothing  more  could  be 
done,  if  the  principal  suit  were  against  co-debtors  who  were 
not  partners.  But  when  the  question  is  whether  some  one  oth- 
er than  the  defendant  is  interested  in  the  credit  ao-ainst  the 
garnishee,  the  liability  of  garnishee  may  be  affected  by  the 
question  whether  he  owes  the  debt  to  his  joint  ci'editors  as 
partners,  or  otherwise.  It  may  hardly  be  questioned,  that 
where  a  debt  is  due  to  several  jointly,  the  interest  of  either 
may  be  attached,  so  long  as  there  are  no  other  interests  to  be 
considered.  This  is  the  case  where  the  creditors  are  not  part- 
ners in  the  credit.  The  interest  of  each  creditor  is  as  distinct 
as  it  would  be  were  the  thing  owned  any  other  kind  of  prop- 
erty. Not  so,  however,  where  the  credit  is  an  asset  of  a  part- 
nership. 

§  490.  Partnership  Credits. — The  reason  why  this  distinc- 
tion is  made  in  the  view  taken  of  debts  due  to  partnerships 
and  those  due  to  several  creditors  who  are  not  partners,  is,  that 
there  are  two  classes  of  creditors  who  are  interested  in  the  as- 
sets of  a  partnership  ;  (1)  partnership  creditors,  and  (2)  cred- 
itors of  the  individual  members  of  the  firm.  The  former  have 
a  preferred  right  to  satisfaction  out  of  the  partnership  assets, 
and  as  a  consequence  must  be  regarded  as  having  an  interest 
at  stake,  when  it  is  sought  to  reach  the  Interest  of  an  individ- 
ual member  of  the  firm  by  attachment  at  the  suit  of  the  indi- 
vidual's creditor.  The  diflficultles  in  the  way  of  this  are  Insu- 
perable except  by  legislation.  Under  the  general  provisions  of 
the  attachment  law,  the  interest  of  an  Individual  member  of  a 
partnership  cannot  be  reached  by  garnishment.  The  garnishee 
cannot  answer  that  he  Is  indebted  to  the  individual.  When  he 
answers  that  he  Is  Indebted  to  the  defendant  and  his  copart- 
ners, there  Is  nothing  upon  which  to  base  a  judgment  against 
the  garnishee.  Before  it  could  possibly  be  decided  that  the 
defendant  had  any  Interest  whatever  In  the  credit,  the  partner- 
ship liabilities  must  be  ascertained,  and  a  balance  struck  with 


327  GARNISHEES    JOINTLY   INDEBTED.  §    490 

his  copartner.  When  the  garnishee  may  be  required  to  answer 
to  some  one  else  than  the  plaintiff  in  attachment,  he  cannot 
be  charged  in  the  proceeding.^  If  he  is  indebted  to  the  part- 
nership, lie  cannot  discharge  the  debt  by  paying  to  any  one 
other  than  the  firm.  This  he  could  do  in  effect  by  paying  the 
judgment  against  huu  as  garnishee,  provided  the  attachment 
suit  were  against  the  firm,  but  not  if  it  were  against  one  of  the 
individual  members.^  The  partner's  interest  in  the  credit 
would  be  contingent  upon  rights  in  respect  to  the  particular 
amount,  after  settling  all  the  partnership  affairs.  This  is  done 
by  an  equitable  proceeding,  and  equity  will  not  volunteer  its 
aid  to  carry  into  effect  mere  statutory  remedies,  which  are  in- 
complete because  the  statute  has  failed  to  provide  the  requis- 
ite process,  or  the  process  provided  is  imperfectly  executed. 
The  garnishee  cannot  be  charged,  where  the  action  of  a  Court 
of  Equity  is  necessary  before  his  indebtedness  to  the  defend- 
ant can  be  ascertained.^  The  "debts"  to  be  reached  by  gar- 
nishment, except  where  otherwise  specially  provided,  must  be 
such  as  would  enable  the  creditor  to  maintain  an  action  at  law 
against  the  debtor.^  It  is  plain  that  ordinarily  one  of  the  j^art- 
ners  cannot  maintain  an  action  against  one  who  is  indebted  only 
to  the  firm.  The  only  exception  to  this  is  where,  by  death  of 
•ne  of  the  partners,  the  survivor  succeeds  to  his  rights,  and 
becomes  at  once  the  owner  of  all  the  assets,  and  liable  for  all 
the  debts  of  the  late  firm.  This  has  also  been  relied  on  as  fur- 
nishing an  exception  to  the  rule,  that  the  debtor  of  the  part- 
nership cannot  be  charged  as  garnishee  of  one  of  the  partners.^ 
But  even  the  right  to  condemn  the  credits  of  the  partnership 
to  the  payment  of  the  individual  debts  of  the  surviving  part- 
ners can  hardly  be  exercised,  without  first  providing  for  part- 
nership creditors.  The  interest  of  the  partners  in  the  partner- 
ship assets,  whether  they  consist  of  effects  or  credits,  is  only 

1  Tread  well  v.  Brown,  41  N.  H.  12  ;  43  N.  H.  290. 

2  Williams  v.  Gage,  49  Miss.  777. 

3  Sheel y  *'.  Second  Nat'l  Bank,  G2  Mo.  17.    . 

4  Hoyt  V.  Swift,  13  Vt.  133  ;  37  Am.  Dec.  58G  ;  Clark  v.  Farnum,  7  E.  I.  174  ; 
May  V.  Baker,  15  111.  90  ;  Harrell  j.  Whitman,  19  Ala.  138  ;  Folsom  v.  Haskell, 
11  Cusli.  470  ;  -Johnson  v.  Lamping,  34  Cal.  293  ;  Godden  v.  Pierson,  42  Ala. 
370 ;  Burnliam  v.  Hopkinson,  17  N.  H.  259 ;  Driscoll  v.  Hoyt,  11  Gray,  440 ; 
Ives  V.  Van  Scoyac,  81  111.  120  ;  Ante,  §§  335,  449. 

6  Knox  V.  Scbepler,  2  Hill  (S.  C),  595.   See  Berry  v.  Harris,  22  Md.  30. 


§    -190  GARNISHEES    JOINTLY    INDEBTED.  328 

what  remains  after  settling  the  partnership  accounts,  not  only 
with  the  creditors  but  witii  his  copartners.^  Unless  there  is 
something  remaining  to  the  credit  of  the  defendant  in  attach- 
ment after  such  a  settlement,  his  interest  is  nothing^ 

Whether  the  interest  of  the  defendant  in  the  assets  of  the 
partnersliip  may  be  attached  by  seizure,  is  a  different  proposi- 
tion.*^ Only  the  interest  of  the  defendant  is  condemned  and 
sold,  and  the  purchaser  is  left  to  ascertain  the  value  of  such 
interest  by  sudi  means  as  are  at  his  command  ;  while  by  gar- 
nishment and  judgment  rendered  against  the  garnishee,  the 
firm  credit  would  be  sequestered  and  applied  to  the  payment 
of  the  debt  of  one  of  the  partners,  who  might  on  settlement  be 
found  to  have  no  interest  whatever  in  the  fund.'-*  For  the 
foregoing  reasons,  it  has  been  quite  generally  held  that  gar- 
nishment will  not  lie  against  the  debtor  of  a  partnership,  in  an 
action  by  a  creditor  of  one  of  the  members  of  the  firm.^'^  When 
the  statute  provides  for  garnishment  In  cases  of  this  kind.  It 
will  generally  be  found  to  prescribe  the  means  of  carrying  Its 
provisions  Into  effect.^'  It  Vv-iU  not,  however,  be  construed  to 
extend  to  such  cases  by  Implication,  and  bring  to  Its  aid  the 
powers  of  a  Court  of  Equity,  because  the  emergency  requires 
such  assLstanca.  Wiien  all  or  several  members  of  the  partner- 
ship are  summoned  as  garnishees  of  their  copartner,  who  «s 
sued  in  the  action  for  his  individual  indebtedness  to  the  j)laln- 
tift",  all  the  objections  to  the  j)ropositIon  to  charge  the  garnish- 
ee appear. ^^  AViiether  the  partner  be  summoned  as  garnish- 
ee of   his  copartner,  In   respect  to   the  supposed   indebtedness 

s  Upham  V.  Naylor,  9  Mass.  490;  Fisk  v.  Herrick,  6  Mass.  271;  Bulfinch  v. 
AViuchenback,  3  Allen,  IGl;  Church  r.  Knox,  2  Conn.  .514;  Barry  v.  Fisher,  39 
How.  Pr.  521;  Johnson  v.  King,  6  Humph.  2.33. 

"  Lyndon  v.  Gorliam,  1  Gallisou  C.  C.  367;  McCarty  v.  Emlen,  2  Dall.  277; 
Smith  V.  tJahoon,  37  Me.  281. 

liA'itc',  §3G. 

'•*  Winston  v.  Ewing,  1  Ala.  29;  34  Am.  Dec.  768. 

I"  Atkins  V.  Prescott,  10  N.  H.  120;  Whitney  v.  Munroe,  19  Me.  42;  36  Am. 
Dee.  733;  liurnell  v.  Weld,  59  ^le.  423;  Thompson  v.  Lewis,  34  Me.  167;  Parker 
V.  Wright,  66  Me.  392;  Wallace  v.  Patterson,  2  Harr.  &  McH.  463;  Towue  v. 
Leach,  32  Vt.  747;  Schatzell  v.  Bolton,  2  McCord,47S;  13  Am.  Dec.  748;  Smith 
i\  M';Micken,3  La.  An.  319;  Thomas  v.  Lusk,  13  La  Aa.  277;  Myers  v.  Smith, 
29  I  Hiio  St.  120;  Mobley  v.  Loubat,7  How.  (Miss.)  318. 

11  Willis  c.  Henderson,  43  Ga.  325. 

^  Buruham  v.  Hopkinson,  17  N.  H.  259;  Williams  v.  Gage,  49  Miss.  777. 


329  GARNISHEES    JOINTLY    INDEBTED.  §   491 

to  the  defendant,  or  the  party  summoned  is  a  debtor  to  the 
partnership,  he  cannot  be  charged  in  an  action  against  one  of 
the  partners. ^^  And  yet  it  is  held  in  New  Jersey  that  the  in- 
terest of  a  partner  in  specific  property  or  a  particuhir  fund 
may  be  attached  for  iiis  individual  debt.  Accordingly,  where 
land  held  in  trust  for  a  firm  was  sold  under  a  mortgage,  the 
surplus,  after  satisfying  the  mortgage  debt,  was  decided  to  be 
attachable  in  the  hands  of  the  officer. ^^  So,  in  Pennsylvania, 
where  a  creditor  of  one  member  of  a  partnershij)  caused  a  debt- 
or of  the  firm  to  be  summoned  as  garnishee  before  a  justice  of 
the  peace,  who  renderetl  judgment  against  him  for  one-half 
his  debt,  which  he  paid  without  objection  on  the  part  of  the 
firm;  and  afterwards  the  same  debtor  was  garnished  by  a  part- 
nership creditor,  and  paid  the  remaining  one-half  of  his  debt, 
but  defended  as  to  the  residue  upon  the  ground  that  it  had 
been  paid  ;  he  was  protected  by  the  judgment  of  the  justice 
of  the  peace,  even  conceding  the  irregularity  of  the  proceed- 
ings. The  justice  had  jurisdiction  of  the  parties  and  of  the 
subject  matter,  and  the  acquiescence  of  the  firm  and  the  gar- 
nishee was  held  conclusive  against  the  firm  creditor. ^^ 

§  491.  Credits  Jointly  Owned  by  Defendants,  but  not  as  Part- 
ners.— When  a  debt  is  owing  to  two  or  more  jointly,  the  rule 
is  that  neither  of  the  creditors  can  maintain  an  action  n gainst 
the  debtor  without  joining  as  plaintiffs  his  co-obligees.  ^The 
codes  of  procedure  make  provision  for  cases  where  one  or 
more  of  the  creditors  refuse  to  join  as  plaintiffs,  by  per- 
mitting the  party  suing  to  join  his  co-parties  as  defendants, 
stating  his  reasons  therefor,  thus  overcoming  the  objection 
of  a  defect  of  parties  plaintiff".  But  this  provision  is  not 
available  when  it  is  sought  to  charo;e  the  common  debtor  as 
garnishee  of  one  of  the  joint  creditors,  in  respect  to  the  propor- 
tion of  the  demand  due  the  defendant.  According  to  the  rule 
that  garnishment  depends  u})on  the  right  of  the  defendant  to 
maintain  an  action  in  his  own  name  against  the  party  sum- 
is  Kingsley  v.  Missouri  etc.  Co.,  14  Mo.  467;  Chatzel  v.  Bolton,  3  McCord,  33j 
Johnson  v.  King,  6  Humpli.  233. 
"  Hill  V.  Beach,  12  N.  J.  Eq.  31. 
15  Howard  v.  McLaughlin,  98  Pa.  St.  440» 


§   491  GARNISHEES   JOINTLY   INDEBTED.  330 

moiied,  the  proceeding  would  not  lie  In  order  to  attach  the  In- 
terest of  one  of  such  joint  creditors  in  the  demand  against  the 
common  debtor.  But  the  same  reasons  that  operate  to  defeat 
the  garnishment,  when  resorted  to  by  the  creditor  of  one  of 
the  members  of  a  partnership,  do  not  apply  when  the  debt  Is 
not  due  to  a  partnership.  The  Interest  of  one  of  the  creditors 
may  be  ascertained,  without  involving  the  necessity  of  account- 
ing between  them.  There  are  no  partnership  creditors  to  be 
provided  for  out  of  the  common  fund.  The  transaction  stands 
alone,  and  neither  of  the  creditors  has  any  lien  upon  the  Inter- 
est of  his  co-owners  of  the  credit,  for  debts  arising  from  any 
other  transactions  between  themselves.^  And  yet  the  mere 
fact  that  the  defendant  In  the  attachment  suit  was  joined  with 
another  as  creditor  of  the  party  summoned  as  garnishee,  has 
been  held  sufficient  to  deprive  the  plaintiff  of  his  right  to  a  judg- 
ment. It  is  reasoned  that  neither  of  the  creditors  owned  any 
particular  part  of  the  demand  against  the  garnishee ;  that  he 
could  not  be  charged  in  respect  to  the  entire  debt ;  and  yet  If 
judgment  were  taken  for  a  moiety,  that  would  belong  to  the 
creditor  who  was  a  stranger  to  the  action  as  well  as  to  the  de- 
fendant ;  that  in  case  he  should  pay  one  moiety  and  fail  to 
pay  the  other,  the  stranger  should  not  be  forced  to  lose  more 
than  one  half  of  that  which  was  unpaid,  and  by  the  same  rule, 
would  be  entitled  to  the  benefit  of  the  half  collected  by  pro- 
cess of  garnishment ;  that  the  interest  of  the  principal  defen- 
dant Is  contingent,  and  should  he  die,  the  other  creditor  suc- 
ceeds to  the  whole  claim  by  survivorship  ;  that  while  the  pro- 
ceeding by  garnishment  is  pending,  the  creditor,  who  is  a 
stranger  to  the  suit,  cannot  enforce  his  demand  by  a  separate 
action,  and  consequently  his  Interests  are  Injuriously  affected 
by  a  suit  to  which  he  is  not  a  party;  that  the  defendant,  being 
a  joint  creditor,  may  receive  the  moiety  not  attaclied  and  dis- 
charge the  debtor,  and  thus  leave  his  co-creditor  remediless.^ 
There  are  valid  objections  to  the  forcible  severance  of  a  cause 
of  action  which  Is  strictly  joint,  where  these  Incidents  to  joint 
demands  remain  In  full  force  as  at  common  law.    There  might 

1  Thorndike  v.  De  Wolf,  6  Pick.  120. 

2  Hanson  y.  Davis,  19  N.  H.  133.    See  French  w.  Rogers,  16  N.  H.  177;  Fair- 
child  V.  Lampsou,  37  Vt.  407  ;  Hawes  v.  Waltham,  18  Pick.  451. 


331  GARNISHEES    JOINTLY   INDEBTED.  §   491 

also  be  added  the  further  objection,  tliat  the  debtor  has  a  right 
to  exemption  from  an  additional  suit  for  the  same  debt,  which 
by  the  terms  of  his  contract  should  be  adjudicated  in  a  single 
action.  He  has  a  right  to  make  his  defenses,  if  he  lias  any,  to 
the  joint  demand  once  for  all. 

Nevertheless,  the  garnishee,  when  indebted  on  a  promissory 
note  to  joint  payees,  was  held  liable  when  served  with  gar- 
nishment in  respect  to  a  moiety,  in  a  suit  against  one  of  such  joint 
creditors.^  So,  where  two  persons  were  tenants  in  common  of 
a  ship,  and  joint  owners  of  the  cargo,  the  proceeds  of  which 
were  in  the  hands  of  the  party  summoned  as  garnishee,  the 
right  of  the  garnishee  to  have  paid  the  entire  amount  to  either 
was  fully  recognized,  altliough  it  was  decided  that  they  were 
not  partners  in  respect  either  to  the  ship  or  to  the  cargo. 
It  was  also  decided  that  the  ship-owners  were  each  entitled  to 
a  moiety  of  the  cargo  or  its  proceeds  ;  that  neither  had  a  lien 
upon  the  interest  of  the  other,  and  that  their  respective  credi- 
tors could  attach  their  interests  for  individual  debts,  and  thus 
sever  the  liability  of  the  garnishee.^  So  also  in  Maine,  where 
one  was  indebted  to  two  persons  who  held  the  demand  on 
joint  account,  although  it  was  decided  that  one  of  the  joint 
creditors  against  whom  the  attachment  suit  was  brought  could 
not,  without  joining  his  co-creditors,  compel  payment  of  his  own 
moiety,  yet  the  debtor  might  sever  the  cause  of  action  by  pay- 
ing to  each  his  share  of  the  fund ;  and  that  the  law,  in  carry- 
ing out  its  remedial  provisions,  might  sever  a  contract  so  as 
to  subject  the  debtor  to  two  suits  for  the  same  debt.  For  this 
extra  harassment  the  debtor  is  supposed  to  be  indemnified,  by 
the  allowance  made  to  him  out  of  the  amount  for  which 
judgment  is  rendered  against  him  in  garnishment.^  There  are 
serious  difficulties  in  the  way  of  arriving  at  a  satisfactory  con- 
clusion in  regard  to  this  question  on  principle,  and  the  meager 
array  of  decisions  which  are  directly  in  point  renders  it  equal- 
ly doubtful  as  to  the  weight  of  authority.  It  is  one  of 
those  questions  that  depend  upon  the  temper  of  Courts,  and 
their  general  inclination  to  foster  this  remedy  as  a  means  of 

8  Miller  v.  Richardson,  1  Mo.  310. 
4  Tborndike  v.  De  Wolf,  G  Pick.  120, 
6  Whitney  v.  Monroe,  9  Me.  42. 


§    491  GARNISHEES    JOINTLY   INDEBTED.  382 

enforcing  the  payment  of  debts,  or  to  restrict  its  operation  as 
an  arbitrary  infringement  on  personal  rights.  It  will  also  be 
affected  by  the  statutes  of  each  State,  and  the  rulings  of  the 
Courts  in  respect  to  joint  obligees,  and  their  rights  as  between 
themselves  and  against  the  obligor.  But  where  the  common 
law  is  in  force  as  to  contracts  and  liabilities  of  this  kind,  and 
there  is  no  special  statute  from  which  an  exception  may  be  de- 
duced in  favor  of  individual  creditoi's  of  the  joint  creditors, 
when  proceeding  by  attachment,  the  sounder  doctrine  seems 
to  be  that  the  joint  liability  cannot  be  severed  by  process  of 
garnishment.  Thus,  it  is  held  in  a  somewhat  recent  case  in 
the  State  of  Michigan,  that  in  a  suit  against  several  defendants, 
the  garnishee  could  not  be  charged  on  a  showing  that  he  was 
indebted  to  part  of  them  only.^  This  decision  is  based  u[)on 
the  general  principle  that  the  action  is  purely  statutory  and 
cannot  be  extended  by  implication  ;  and  the  presumption  is 
that  if  the  action  had  been  against  one  of  the  defendants,  and 
the  garnishee  answered  tiiat  he  was  indebted  to  them  all  on 
joint  account,  the  ruling  would  have  been  to  the  same  effect. 

«  Ford  V.  Detroit  Dry  Dock  Co.,  50  Mich.  358. 


CHAPTER  XL. 

GARNISHMENT    AFTER    SUIT    BY    DEFENDANT    AGAINST 
GARNISHEE 

§  402.    Action  pending  in  the  same  Court  from  which  garnishment  issues. 

§  493.  Action  and  garnishment  pending  in  different  Courts  of  concurrent  ja- 
risdiction. 

§  494.  Action  and  garnishment  pending  in  separate  Courts  of  difTerent  juris- 
diction. 

§  495.    "Where  judgment  against  garnishee  will  bar  the  action  by  defendant. 

§  49(5.    "Wliere  the  action  by  defendant  will  bar  the  proceeding  of  garnishment, 

§  497.    Judgment  debtors  cliarged  ns  garnisliees. 

§  498.    The  doctrine  that  judgment  debtors  cannot  be  garnished. 

§  499.    Prior  judgment  in  faror  of  party  summoned  as  garnishee. 

§  492.  Action  Pending  in  the  same  Court  from  wMcli  Gar- 
nishment Issues. — Tlie  g:irnisliee,  occu[)ying  the  position  of  a 
stakeholder  between  the  principal  parties,  is  entitled  to  all  the 
protection  the  Court  is  able  to  afford  against  the  possibility  of 
being  forced  to  pay  the  same  debt  more  than  once.  This  bur- 
den might  be  imposed  upon  him  if  two  suits  for  the  same  de- 
mand might  be  concuri'ently  and  independently  prosecuted 
against  him,  one  by  his  creditor,  and  tlie  other  by  the  credit- 
or's creditor,  and  the  judgments  should  be  equally  binding. 
The  only  method  by  which  such  a  result  can  be  avoided  is,  by 
giving  the  pendency  of  one  action  a  controlling  effect  upon 
the  other  subsequently  brought.  This  can  be  most  readily 
accomplished  where  the  action  by  the  creditor  against  his  im- 
mediate debtor  is  pending  in  the  same  Court  where  the  pro- 
ceeding by  garnishment  is  subsequently  instituted.  The  Court 
has  control  of  its  own  process,  and  can  stay  or  withhold  exe- 
cution when,  during  the  pendency  of  the  action,  a  creditor  of 
the  plaintiff  institutes  a  suit,  and  causes  the  defendant  to  be 
summoned  as  garnishee.  When  this  control  exists  and  mav 
be  exercised  without  resorting  to  the  extraordinary  powers  of 
the  Court,  there  seems  no  objection  to  the  garnishment  of  debts 
for  which  the  action  is  pending.     Hence  it  may  be  regarded 


§   492       GARNISHMENT   AFTER   SUIT   BY    DEFENDANT.  334: 

as  generally  true,  that  Avhere  an  action  is  pending  against  the 
debtor,  he  may  be  garnished  at  the  suit  of  plaintiff  's  creditor 
by  process  issued  from  the  same  Court. ^ 

The  only  case  where  this  question  Is  of  great  practical  im- 
portance is,  where  the  defendant  has  a  defense  to  the  action. 
If  he  does  not  wish  to  defend,  he  may  answer  admitting  his 
indebtedness,  and  calling  attention  to  the  pending  suit  for  the 
debt.  But  where  he  is  not  prepared  to  admit  his  indebtedness, 
he  will  controvert  it  as  well  when  summoned  as  garnishee  as 
in  the  suit  directly  against  him.  When  his  Indebtedness  is 
thus  put  In  Issue,  It  has  been  held  that  the  right  to  garnish 
after  suit  brought  against  the  garnishee  will  depend  upon  the 
action  and  the  proceeding  being  in  the  same  Court.^  It  has 
even  been  held  by  some  of  the  early  authorities,  that  in  no 
case  where  an  action  was  pending  for  ihe  recovery  of  a  debt, 
could  the  defendant  be  garnished  in  respect  thereto.^  But 
these  cases  were  overruled  by  the  Courts  in  which  this  doc- 
trine was  declared,*  and  It  Is  now  quite  generally  held  that  the 
pendency  of  such  action  will  not  of  itself  defeat  the  garnish- 
ment.^ In  reaching  this  conclusion,  the  Courts  reject  the  Eng- 
lish doctrine  on  the  subject,  for  the  reason  that  the  attachment 
law  of  this  country  does  not  depend  upon  local  custom  and 
the  administration  of  law  by  inferior  tribunals,  as  is  the  case  in 
England.  There  the  objection  was,  that  the  Inferior  Courts 
exercising  juiisdictlon  in  attachments  would,  if  such  attach- 
ments were  permitted,  be  enabled  to  control  the  process  of 
superior  Courts  where  the  action  for  the  direct  recovery  of  the 
debt  was  pending.^  Of  course,  In  this  country,  the  proceeding 
being  statutory,  and  jurisdiction  In  attachment  being  exercised 
by  superior  as  well  as  inferior  Courts,  no  such  considerations 
can  affect  the  question. 

1  INIcDonald  v.  Karney,  8  Kans.  20  ;  Locke  v.  Tippetts,  7  Mass.  149 ;  Foster  «. 
Jones,  15  Mass.  185  ;  Hitt  v.  Lacy,  3  Ala.  104;  36  Am.  Dec.  440. 

2  Bingham  v.  Smith,  5  Ala.  Col. 

3  l!urnham  r,  Folsom,  5  N.  H.  566  ;  Gridley  v.  Harraden,  14  Mass.  496. 

4  Foster  r.  Dudley,  30  N.  H.  463  ;  Thorndike  v.  De  Wolf,  6  Pick.  120. 

6  Smith  r.  Baker,  10  Me.  458  ;  Crabb  v.  Jones,  2  Miles,  130  ;  Sweeny  v.  Allen, 
1  Pa.  St.  380 ;  Smith  ?•.  Durbridge,  26  La.  An.  531 ;  Thrasher  v.  Buckingham, 
40  Miss.  67;  Locke  i'.  Tippetts,  7  Mass.  149;  Lieber  v.  St.  Louis  etc.  Ass'n,  36 
Mo.  382. 

«  McCarty  v.  Emlen,  2  Dallas,  277;  2  Yeates,  190  ;  Huff  v.  Mills,  7  Yerger,42. 


335     GARNISnMENT  AFTER  SUIT  BY  DEFENDANT.   §  493 

§  493.  Action  and  Garnishment  Proceeding  pending  in  dif- 
ferent Courts  of  Concurrent  Jurisdiction. — Wliere  the  Courts 
in  which  the  two  proceedings  are  pending,  respectively,  have 
concurrent  and  simihir  jurisdiction — that  is,  for  example, 
where  tlicy  are  botli  State  Courts,  with  jurisdiction  of  the  sub- 
ject matter  within  the  same  territorial  limits,  there  is  but 
slight  reason,  if  any,  for  holding  that  the  pendency  of  the 
action  will  necessarily  defeat  the  garnishment.  While  it  is 
true,  even  in  such  cases,  that  the  Courts  are  distinct,  and  their 
judicial  acts  are  performed  by  different  officers,  the  process  of 
the  Court  is  generally  executed  by  the  same  officer,  and  the 
State  law  will,  in  most  cases,  be  found  to  supply  some  method 
by  which  a  garnishee  may  avoid  coming  to  grief  between  the 
two  judgments.  Even  the  two  judgments  for  the  same  debt 
will  be  no  special  grievance,  if  there  can  be  but  a  single  exe- 
cution. But  if  the  judgment  in  garnishment  cannot  be  relied 
upon  to  prevent  judgment  and  execution  in  the  direct  action, 
the  pendency  of  the  action  should  abate  the  attachment  suit, 
even  where  the  Courts  were  of  concurrent  jurisdiction.  This 
is  a  question  that  cannot  be  properly  determined  on  the  basis 
of  any  technical  agreement  or  conflict  of  jurisdiction,  but  must 
depend  for  its  solution  In  every  case  upon  the  conservation  of 
the  substantial  rights  of  the  party  over  whom  both  judgments 
are  pending.  While  a  proper  regard  for  tlie  jeopardized  in- 
terests of  the  plaintiff  in  attachment  would  incline  the  Court 
to  give  a  liberal  construction  to  the  statute  in  this  respect,  it 
cannot  entertain  the  attachment  suit  and  bring  in  by  garnish- 
ment one  against  whom  a  prior  suit  is  pending,  where  there 
is  a  possibility  that  the  prior  suit  will  go  to  judgment,  which 
may  be  enforced  by  execution,  in  spite  of  any  judgment  that 
may  be  rendered  against  the  same  party  as  garnishee.  So,  it 
was  held  in  Michigan,  that  when  a  suit  is  pending  before  a 
justice  of  the  peace  to  recover  a  debt,  the  defendant  cannot  be 
garnished  before  another  justice.^ 

§  494.  Action  and  Garnishment  pending  in  separate  Courts 
of  Different  Jurisdictions. — When  the  two  actions  are  not  only 
brought  in  separate  Courts,  but  the  jurisdiction  of  one  is  en- 

1  Custer  V.  White,  49  Mich.  262. 


§   494        GAllXISHMENT   AFTER    SUIT    BY    DEFENDANT.  336 

tlrely  dltitlnct  from  the  other,  the  first  Court  to  obtain  juris- 
diction will  maintain  it  to  the  end  of  the  litigation.  Tiie  same 
question  is  to  be  ultimately  decided  in  each,  and  the  maxim 
qui  prior  est  tempore^  potior  est  jure  will  govern.  Thus,  where 
an  action  was  pending  in  the  District  Court  of  the  United 
States,  and  before  judgment  the  defendant  was  summoned  as 
garnishee  of  the  plaintiff  in  a  State  Court,  and  judgment  was 
obtained  against  him,  it  was  held  that  such  judgment  could 
not  be  pleaded  in  bar  of  the  original  suit.^  To  have  held 
otherwise,  would  have  been  an  act  of  abdication  to  which 
Courts  are  not  at  all  prone.  It  is  purely  a  question  of  priority 
and  not  superiority  of  jurisdiction  ;  for  the  Court  does  not  hes- 
itate to  acknowledge  that  if  jurisdiction  had  first  attached  in 
the  garnishment,  it  would  not  have  been  ousted  by  the  subse- 
quent suit  in  the  Federal  Court.  All  that  is  claimed  is,  that 
the  rule  of  priority  is  reciprocal.^  The  pendency  of  the  gar- 
nishment proceeding  should  be  sufficient  to  abate  or  bar  any 
subsequent  action  by  the  defendant  in  attachment  against  the 
garnishee,  and  so  the  pendency  of  the  suit  by  the  garnishee's 
creditor  should  have  a  like  effect  upon  the  subsequent  attach- 
ment suit,  in  which  iudsrment  is  souixht  for  the  same  debt 
against  the  same  party .'^  So  where  the  action  is  pending  in 
one  State  and  the  proceeding  is  subsequently  instituted  in 
another,  the  rule  of  jn-iority  as  above  stated  will  be  applied.  It 
is  held  that  the  payment  of  a  judgment  obtained  against  the 
debtor  summoned  as  garnishee,  where  the  attachment  defend- 
ant is  served  by  publication,  will  be  a  complete  defense  to  a 
subsequent  action  by  the  attachment  defendant  in  another 
State*  But  if  the  foreign  garnishment  suit  is  commenced  sub- 
sequent to  the  domestic  action  against  the  garnishee,  it  is  held 
in  Massachusetts  that  the  judgment  rendered  in  favor  of  the 
plaintiff  in  attachment,  and  its  payment,  does  not  discharge 
the  liability  nor  prevent  a  recovery  in  the  prior  action.^     And 

1  Wallace  v.  McConnell,  13  Peters,  136. 

2  See  also  Wood  v.  Lake,  13  Wis.  SI ;  Bingham  v.  Smith,  5  Ala.  651. 

8  Wallace  v.  McConnell,  13  Pet.  136  ;  Greenwood  v.  Ptector,  Hemp.  C.  C.  708. 
See  Arthur  v.  Batte,  42  Tex.  159. 

*  Cochran  v.  Fitch,  1  Sandf.  Ch.  1-12.  But  see  Mankin  v.  Chandler,  2  Brock. 
C.  C.  125. 

6  Whipi^le  V.  Robins,  97  Mass.  107. 


337  GARNISHMENT   AFTER   SUIT   BY   DEFENDANT.      §    495 

when  the  situation  of  the  parties  is  reversed,  so  that  the  gar 
nishment  is  instituted  in  Massachusetts  subsequent  to  the  cora 
mencement  of  the  suit  in  another  State  to  recover  the  same 
debt  from  the  garnishee,  he  will  not  be  charged,  when  he  has 
already  appeared  to  the  action  in  the  other  State.^  So  the 
pendency  of  an  attachment  suit  in  another  State  is  pleadable 
in  abatement  to  an  action  against  the  garnishee  by  his  cred- 
itor, who  is  the  defendant  in  attachment.''  When  both  the 
prior  and  subsequent  suits  are  by  garnishment,  in  respect  to 
the  same  indebtedness,  but  by  dijfferent  plaintiffs  in  attach- 
ment, the  practice  in  Illinois  seems  to  be  to  suspend  final  judg- 
ment in  the  case  last  brought,  until  the  termination  of  the 
prior  action.^ 

There  is  nothing  in  the  nature  of  an  ordinary  suit  which 
changes  the  relations  previously  existing  between  plaintiff 
and  defendant,  so  that  the  plaintiff's  demand  might  not  be 
subject  to  process  of  garnishment,  if  the  statute  expressly  pro- 
vides for  such  cases,  and  furnishes  the  necessary  protection 
for  the  garnishee,  that  he  may  not  be  required  to  make  double 
payment.  But  where  the  suit  is  pending  in  another  State, 
whose  process  cannot  be  controlled,  even  legislation  can  hardly 
provide  means  for  subjecting  the  debt  to  garnishment  in  a  do- 
mestic proceeding,  without  exposing  the  garnishee  to  the  dan- 
gers against  which  he  should  be  protected.  It  may  well  be 
doubted  whether  the  power  of  legislatures  extends  to  the  con- 
fiscation of  the  property  of  the  individual,  and  it  can  amount 
to  little  less  than  this,  to  authorize  a  judgment  against  one  who' 
has  already  appeared  to  an  action  for  the  same  cause  in  another 
jurisdiction,  and  may  there  be  held  liable. 

§  495.  Where  Judgment  against  Garnishee  will  Bar  the 
Action  by  Defendant. — There  is  an  essential  reason  why  the 
pendency  of  legal  proceedings  against  the  garnishee  should 
prevent  his  being  charged  in  aid  of  the  provisional  remedy, 
which  is  involved  in  all  the  technical  objections  on  account  of 
the  different  tribunals  in  which  the  two  actions  are  brought. 

6  American  Bank  v.  Rollins,  99  Mass.  313. 

7  Roche  V.  Rhode  Island  Ins.  Ass.,  2  111.  App.  360. 

8  Brickey  v.  Davis,  9  111.  App.  362. 
II.  Attach.— 22. 


§   495       GARNISHMENT   AFTER   SUIT   BY   DEFENDANT.  838 

It  is,  tliat  the  judgment  when  rendered  in  garnishment 
will  not  bar  the  action  by  the  defendant  against  his  debtor. 
The  better  opinion,  therefore,  under  the  present  statutes  is, 
that  this  should  be  the  test  of  whether  the  pendency  of  the 
suit  would  prevent  the  garnishee  from  being  charged.  When, 
notwithstanding  the  suit  by  the  defendant,  the  situation  of 
the  parties  is  such  that  the  judgment  rendered  against  the  gar- 
nishee may  be  pleaded  in  bar  of  a  judgment  in  the  prior  suit, 
tlie  garnishee  may  be  charged  as  though  no  action  had  been 
instituted  by  the  defendant  in  attachment,  at  the  time  the 
process  of  garnishment  was  served  on  the  debtor.^  His  ability 
to  plead  the  judgment  against  him  as  garnishee  in  bar,  will 
often  depend  upon  the  condition  of  the  pleadings  in  the  case. 
After  issue  joined,  it  has  been  held  that  it  will  be  too  late  to  plead 
the  judgment  obtained  in  the  subsequent  action,  for  the  reason 
that  no  day  for  pleading  remained  to  the  garnishee.^  But  the 
mere  fact  that  issue  is  joined  will  not  always  prevent  charg- 
ing the  defendant  in  the  pending  suit  as  garnishee  of  the  plain- 
tiff.^ And  where  the  gai-nishee  fails  to  defend  the  action  by 
pleading  the  garnishment  when  such  plea  is  available,  and 
pays  the  judgment  to  the  defendant  in  attachment,  he  will  be 
charsred  as  o-arnishee.^  Accordincj  to  the  rule  laid  down  in 
rSpicer  V.  Spicer,^  the  question  whether  the  issues  were  made 
or  not  could  not  have  had  much  Influence,  for  the  rights  of  the 
parties  were  preserved  by  a  stay  of  execution.  It  was  there 
held,  that  when  defendant  was  summoned  as  garnishee  of 
plaintiff  in  a  pending  suit,  and  was  charged  for  the  full 
amount  of  his  debt,  this  would  not  interrupt  the  proceeding  in 
the  prior  suit,  up  to  the  point  where  plaintiff  might  show  him- 
self entitled  to  judgment.  But  though  judgment  should  be 
rendered  for  plaintiff  in  the  prior  suit,  the  Court  would  stay 
the  execution  until  plaintiff  should  cause  the  defendant  to  be 
released  from  the  judgment  against  him  as  garnishee,  provided 
the  proceeding  had  gone  to  judgment ;  otherwise,  until  the  gar- 
nishee was  released  from  liability  under  process.^   This  would 

1  Thorndike  v.  De  Wolf,  6  Pick.  120 ;  Foster  v.  Jones,  15  Mass.  185. 

2  Howell  V.  Freeman,  3  Mass.  121 ;  Wadsworth  v.  Clark,  14  Vt.  139. 
8  Smith  V.  Parker,  10  Me.  458. 

*  Locke  V.  Tippets,  7  Mass.  149. 

6  23  Vt.  678. 

6  Spicer  v.  Spicer,  23  Vt.  678. 


339     GARNISHMENT  AFTER  SUIT  BY  DEFENDANT.   §  496 

save  the  garnishee  from  double  payment,  and  at  the  same  time 
give  full  effect  to  the  garnishment  proceeding  ;  for  the  only 
manner  in  which  the  garnishee  could  be  released  by  the  plain- 
tiff, when  the  parties  were  justly  indebted  to  their  respective 
creditors,  and  the  proceedings  were  regular,  would  be  by  sat- 
isfying the  demand  of  the  attachment  plaintiff. 

§  496.  Where  the  Action  by  Defendant  will  Bar  the  Pro- 
ceeding of  Garnishment. — The  doctrine  that  the  proceeding 
may  be  successfully  instituted  where  the  defendant  has  al- 
ready instituted  his  action  against  the  garnishee,  when  the 
state  of  the  pleadings  and  the  situation  of  the  parties  will  en- 
able the  Court  to  protect  the  innocent  third  party  from  being 
subjected  to  two  judgments  for  the  same  debt,  is  better  sup- 
ported by  negative  authority.  It  has  frequently  been  decided 
that  when  the  judgment  in  the  attachment  proceeding  cannot 
be  pleaded  in  bar  of  a  judgment  in  the  pending  suit,  garnish- 
ment will  not  lie  against  the  defendant.^  The  pendency  of  the 
suit  is  a  bar  to  the  garnishment,  because  judgment  in  the  lat- 
ter cannot  be  used  to  prevent  the  prior  case  from  proceeding 
to  judgment  and  execution.^  Thus,  where  process  of  garnish- 
ment was  served  on  the  defendant  in  a  pending  suit,  after  the 
action  had  been  referred,  and  the  referees  had  made  their 
award,  but  judgment  had  not  been  rendered  in  the  case,  it  was 
held  too  late  to  charge  the  garnishee.^  So,  where  a  suit  in 
chancery  was  commenced,  and  set  down  for  trial,  after  which 
the  respondent  was  summoned  as  garnishee  of  the  complainant, 
and  prior  to  the  filing  of  the  answer  by  which  the  pendency  of 
the  suit  was  disclosed  had  been  heard  by  the  chancellor,  whose 
decision  was  pending,  it  was  held  that  such  proceedings  could 
not  be  arrested,  nor  the  anticipated  decree  affected  by  the  gar- 
nishment, and  consequently  the  garnishee  could  not  be  charged, 
and  thus  be  compelled  to  satisfy  both  judgments.*  So,  also, 
where  the  action  pending  between  the  attachment  defendant,  as 

1  Thayer  v.  Pratt,  47  N.  H.  470  ;  Trombly  v.  Clark,  13  Vt.  118  ;  Wadsworth 
V.  Clark,  14  Vt.  139  ;  McCaffrey  v.  Moore,  18  Pick.  492  ;  Kidd  v.  Shepherd,  4 
Mass.  238  ;  Thorndike  v.  Wolf,  6  Pick.  120. 

2  Wadsworth  v.  Clark,  14  Vt.  139. 

8  McCaffrey  v.  Moore,  18  Pick.  492. 
*  Wadsworth  v.  Clark,  14  Vt.  139. 


§  497   GARNISHMENT  AFTER  SUIT  BY  DEFENDANT.     340 

plaintiff,  and  the  party  summoned  as  garnishee,  as  defendant, 
had  been  referred  prior  to  the  garnishment,  under  an  agree- 
ment between  the  parties,  that  execution  should  issue  according 
to  the  finding  of  the  referees,  it  was  held  that  the  defendant 
could  not  be  charged  as  garnishee  In  a  proceeding  Instituted 
prior  to  the  award. ^  And  the  same  Court  where  this  was  so 
decided,  for  the  reason  that  the  pending  suit  had  proceeded 
so  far  that  the  garnishment  was  not  pleadable  by  the  defend- 
ant in  the  action,  refused  to  arrest  the  judgment  after  verdict, 
on  the  ground  that  defendant  was  summoned  as  crarnlshee  in 
resperct  to  the  same  indebtedness,  after  Issue  joined  in  the  prior 
sult.^ 

The  pendency  of  an  action  brought  to  recover  a  debt  will 
prevent  its  being  attached  by  garnishment  In  every  Instance 
where  the  result  would  be  to  expose  the  garnishee  to  two  judg- 
ments, without  any  fault  or  negligence  on  his  part  ;  and  this 
applies  alike  to  causes  pending  in  the  Court,  or  jurisdiction 
where  the  attachment  suit  Is  brought,  and  to  causes  Instituted  In 
different  Courts.  Where  one  Court  cannot  restrain  or  control 
the  process  of  a  coordinate  Court,  It  cannot  entertain  a  suit  by 
attachment  and  garnishment  of  a  debtor  who  has  already  be- 
come subject  to  the  process  of  another  Court  for  the  same 
debt,  when  the  statute  does  not  expressly  provide  the  means 
of  doing  this  without  injury  to  the  Intermediate  party.' 

§  497.  Judgment  Debtors  charged  as  Gramisliees. — There 
,  is  no  reason  beyond  the  Insufficiency  of  the  provisions  of  the 
statute,  why  a  judgment  debt  should  not  be  attached  by  gar- 
nishment. Two  questions  are  involved  in  the  proposition,  and 
these  can  only  be  determined  by  construing  the  governing 
statute  in  each  case.  (1)  Are  such  debts  Included  in  the  class 
of  credits  so  attachable  ?  (2)  Does  the  statute  supply  th© 
means  of  extinguishing  the  principal  judgment  upon  payment 
of  the  judgment  against  the  garnishee?  If  the  judgment  debt 
be  included  according  to  fair  inference,  the  Courts  would  still 
hesitate  to  construe  the  statute  in  favor  of  such  attachment.  If 

s  Howell  V.  Freeman.  3  Mass.  121. 

6Kidd  V.  Shepherd,  4  Mass.  238. 

^  Sievers  v.  Woodburn  etc.  Co.,  43  Mich.  275. 


341  GARNISHMENT   AFTER   SUIT   BY   DEFENDANT.       §    497 

the  result  would  be  that  after  paying  off  the  collateral  judg- 
ment, execution  might  be  issued  on  the  principal  one. 

When  the  language  of  the  statute  is  that  "any  debt  due" 
may  be  attached  by  garnishment  of  the  debtor,  the  Courts,  in 
the  absence  of  any  special  danger  to  the  debtor,  will  interpret 
it  to  mean  judgment  debts  as  well  as  others.  In  one  State, 
the  Court  has  even  held  in  the  face  of  recojjnized  "inconven- 
ience  and  embarrassment  to  debtors,"  which  it  hesitated  to  de- 
fine, that  such  language  embraces  debts  for  which  judgment 
has  been  rendered  as  well  as  others  ;  and  justifies  the  law 
which  produces  this  embarrassment  and  inconvenience  upon 
the  ground  that  the  general  interests  of  the  community  require 
it.  Still,  the  debtor  is  not  without  relief  in  such  cases,  as  he 
may  have  his  writ  of  audita  querela,  or  invoke  the  powers  of 
a  Court  of  Chancery,  when  he  apprehends  serious  loss  or  dan- 
ger from  the  judgment  which  has  been  duplicated.^ 

Whether  the  writ  or  the  chancery  suit  may  be  regarded  as 
a  sufficient  remedy  for  the  absurdity  of  subjecting  a  debtor  to 
two  judgments  for  the  same  debt,  may  be  honestly  doubted. 
If  it  were  the  best  the  Court  had  to  offer,  it  might  be  excused 
for  holding  that  the  legislature  did  not  intend  to  include  judg- 
ment debts  among  attachable  rights,  credits,  etc.,  even  though 
the  word  "  debts  "  be  expressly  used.  In  Illinois,  it  is  laid 
down  that  a  suit  by  attachment  will  lie  upon  a  judgment  in 
the  same  Court  where  such  judgment  was  rendered,  and  that, 
too,  though  plaintiff  is  entitled  to  an  execution  thereon,^  but 
it  need  not  be  apprehended  that  the  same  Court  would  decide, 
after  charging  the  garnishee,  that  the  defendant  in  attachment 
still  had  a  right  to  execution  on  his  judgment.  When  the 
summons  issues  from  the  same  Court  where  the  judgment  was 
rendered,  the  Court  may  control  the  process  so  as  to  prevent 
injury  to  the  garnishee,  and  for  this  reason  hold  the  judgment 
debt  attachable.^  So,  it  seems  that  in^  Michigan,  proceedings 
for  enforcing  the  judgment  will  be  stayed  when  the  judgment 
debtor  is  served  with  garnishment.*     Judgments  may  be  at- 

1  Gager  v.  Watson,  11  Conn.  Ifi8. 

2  Young?'.  Cooper,  59  111.  121  ;  Greatbouse  v.  Smith,  4  111.  541.    See  Minard 
V.  Lawler,  2(i  111.  301. 

8  Webster  v.  McDaniel,  2  Del.  Ch'y,297;  Belcher  v.  Grubb,  4Harr.  461. 
<  First  National  Bank  v.  Miller,  45  Mich.  413. 


§    498      GARNISHMENT   AFTER    SUIT   BY    DEFENDANT.  342 

tached  by  garnishment  in  New  York,^  as  well  as  in  most  of  the 
other  States  where  the  question  has  been  raised,  and  the  statute 
is  capable  of  fair  interpretation  to  this  effect  without  leaving  the 
judgment  debtor  still  exposed  to  the  danger  of  an  execution  so 
attached.^  Indeed,  there  is  no  other  valid  objection  to  the 
attachment  of  judgment  debts  by  this  process,  than  that  of  the 
inconvenience  attending  the  necessary  protection  of  the  gar- 
nishee. The  contest  out  of  which  the  judgment  arose  may 
have  been  over  an  honest  difference  of  opinion  between  the 
creditor  and  the  debtor.  But  when  the  matter  has  been  adju- 
dicated by  a  Court  of  competent  jurisdiction,  the  judgment 
must  be  taken  as  a  final  solution  of  all  controverted  facts,  and 
will  make  a  prima  facie  case  for  the  creditor.'^  If  the  fact  of 
indebtedness  is  in  issue,  it  can  only  be  disproved  by  an  affirm- 
ative showing  on  the  part  of  the  garnishee,  of  subsequent  pay- 
ment. 

The  judgment  debt,  however,  cannot  be  attached  by  service 
of  garnishment  process  upon  an  attorney  who  has  the  judg- 
ment under  his  control,  nor  by  service  upon  any  one  else  than 
the  judgment  debtor  himself.^ 

§  498.  The  Doctrine  that  Judgment  Debtors  cannot  be 
Garnished. — The  objections  to  attaching  by  garnishment,  debts 
due  on  prior  judgments,  are  not  without  reason,  nor  is  there 
necessarily  any  conflict  on  principle  between  the  authorities 
holding  that  judgment  debts  may  be  attached,  and  those  hold- 
ing that  they  may  not  be  attached.  There  is  always  the  dif- 
ference in  statutes  to  be  taken  into  account,  and  the  purely 
statutory  character  of  the  proceeding  confines  the  Court  to 
such  process  and  methods  of  carrying  the  law  into  effect,  as 
the  statute  provides.  Where  one  Justice  of  the  Peace  issued 
summons  in  garnishment  to  be  served  on  a  debtor  against 
whom  judgment  had  been  rendered  by  another  Justice,  it  was 

6  Re  Flandrow,  20  Hun.  36. 

6  Hulbert  v.  Stinson,  6  Blackf.  398  ;  Keith  v.  Harris,  9  Kans.  386  ;  Skipper  v, 
Foster,  29  Ala.  330  ;  Crabb  v.  Jones,  2  Miles,  130  ;  Gray  v.  Henby,  1  Sm.  &  M. 
598  ;  O'Brien  v.  Liddell,  10  Sm.&  M.  371  ;  Fithian  i'.  New  York  etc.  R.  Co.,  31 
Pa.  St.  114  ;  Sweeny  v.  Allen,  1  Pa.  St.  380  ;  Penniman  v.  Smith,  5  Lea,  130. 

T  O'Brien  v.  Liddell,  10  Smedes  &  Marsh.  371. 

8  Re  Flandrow,  20  Hun.  36  ;  Daley  v.  Cunningham,  3  La.  An.  55. 


343  GARNISHMENT   AFTER   SUIT   BY   DEFENDANT.       §   498 

held  in  Michigan  that  the  garnishee  could  not  be  charged,  for 
the  reason  that  such  a  proceeding  would  be  to  give  one  Justice 
restraining  power  over  tlie  process  of  a  Court  of  coordinate 
jurisdiction.^  Where  the  Courts  have  concurrent  jurisdiction 
of  the  subject  matter,  and  are  governed  by  the  same  statute, 
the  legislature  has  it  within  its  power  to  provide  for  garnish- 
ment of  a  judgment  debtor,  when  the  judgment  is  rendered  in 
one  Court,  and  the  garnishment  issues  from  another.  It  is  op- 
posed upon  the  same  ground  as  garnishment  of  a  debt  for 
which  an  action  is  pending  at  the  time — that  it  produces  a  col- 
lision in  the  jurisdiction  of  Courts,  which  would  be  extremely- 
embarrassing  to  the  administration  of  justice,^  Where  the 
judgment  is  in  a  Federal  Court,  it  cannot  be  attached  by  gar- 
nishment issued  by  a  State  Court  ;^  and  when  the  judgment 
is  rendered  in  another  State  from  that  in  which  the  garnish- 
ment  issues,  there  is  an  inherent  difficulty  in  the  way — the 
conflict  of  jurisdiction,  which  can  only  be  overcome  by  mutual 
concession.  It  may  be  decided  as  in  Pennsylvania,  that  a 
judgment  debtor  may  be  garnished  in  that  State,  when  the 
judgment  was  rendered  in  New  York.*  But  in  a  later  case,  it 
was  held  by  the  Supreme  Court  of  the  same  State,  that  a  judg- 
ment there  rendered  could  not  be  attached  by  garnishment  in 
New  York,  so  as  to  affect  the  right  of  the  judgment  credi- 
tor to  coerce  payment  from  the  debtor  in  the  State  where  the 
judgment  was  rendered.^  It  would  seem,  therefore,  that  when 
a  judgment  is  rendered  in  one  State,  and  the  debt  is  subse- 
quently attached  in  another,  by  garnishment  served  on  the 
judgment  debtor,  the  latter  cannot  be  charged  with  any  assur- 
ance that  the  judgment  rendered  against  him  will  prevent  ex- 
ecution issuing  on  the  principal  judgment.^  If  a  judgment 
rendered  in  one  Court  may  be  atttached  by  process  issuing  out 
of  another,  the  fact  that  the  first  Court  is  a  superior  Court 

iSievers  v.  Woodburn  etc.  Co.,  43  Mich.  275. 

2  Wallace  v.  McConnell,  13  Pet.  136. 

SBurrell  v.  Letson,  2  Sijeers,  378;  Thomas  u.  "Wooldridge,  2  Woods,  667; 
Henry  v.  Gold  Park  Min.  Co.,  15  Fed.  Rep.  G49. 

*  Jones  V.  New  York  etc.  R.  Co.,  1  Grant,  457. 

5  Noble  0.  Thompson  Oil  Co.,  713  Pa.  St.  354  ;  21  Am.  Rep.  65.  See  also  Amer- 
ican Hank  v.  Snow,  9  R.  I.  11. 

*Shina  v.  Zimmerman,  23  N.  J.  L.  150  ;  55  Am.  Dec.  260. 


§    493       GARNISHMENT    AFTER    SUIT   BY    DEFEND AXT.  344 

and  the  second  one  of  inferior  jurisdiction,  can  make  no  differ- 
ence.' It  is  not  a  question  of  offended  dignity,  or  encroach- 
ment upon  jurisdiction,  but  purely  one  of  statutory  construc- 
tion. If  the  statute  Joes  not  provide  that  the  judgment  of 
one  Court  can  be  attached  by  garnishment  issuing  out  of 
another  Court,  it  cannot  be  done.*  If  the  statute  authorizes 
'•those  indebted"  to  be  summoned  as  garnishees,  and  the  in- 
evitable result  of  charging  a  judgment  debtor  would'  be  that, 
while  he  would  be  bound  by  the  judgment  against  him  as 
garnishee,  he  would  still  be  exposed  to  execution  on  the  origi- 
nal judgment,  it  would  be  a  reasonable  inference  that  judg- 
ment debts  were  not  contemplated  by  the  legislature  when  the 
general  language  of  the  statute  was  used. 

§  499.  Prior  Judgment  in  favor  of  Party  summoned  as 
Garnishee. — The  judgment  against  the  garnishee,  when  con- 
sidered as  a  bar  to  proceedings  by  garnishment,  or  as  a  stay  of 
such  proceedings,  stands  upon  a  different  footing  from  the  judg- 
ment in  crarnishee's  favor.  The  attachins;  creditor  stands  in 
the  shoes  of  the  defendant,  and  succeeds  to  the  latter's  rights 
against  the  partv  sunmioned.  If  the  g-arnishee  is  not  indebted 
to  the  defendant,  it  is  quite  clear  that  he  cannot  be  charged  at 
the  suit  of  defendant's  creditor,  and  required  to  satisfy  the  hit- 
ter's demand.  It  also  follows,  that  if  the  question  of  the  gar- 
nishee's indebtedness  has  been  judicially  passed  upon  in  an  ac- 
tion brought  by  his  creditor,  he  cannot,  by  tius  indirect  method, 
be  again  forced  to  submit  to  judicial  inquiry  into  the  same 
facts. ^  The  judgment  rendered  in  his  favor  would  be  a  com- 
plete bar  to  a  subsequent  action  by  the  same  party,  or  any  one 
claiming  under  him  as  assignee,  for  the  same  demand,  and 
would  be  available  by  the  same  rule  against  a  subsequent  at- 
taching creditor  of  the  defeated  plaintiff.^  The  only  notable 
exception  to  this  principle  is  that  made  by  a  ruling  of  the  Su- 

7  Luton  V.  Hoehn,  73  111.  81.  Contra,  Clodfelter  v.  Cox,  1  Sneed,  330  ;  60 
Am.  Dec.  157. 

8  Young  V.  Young.  2  Hill  (S.  C),  426  ;  Sievers  v.  Woodburn  etc.  Co.,  43Mich. 
275  ;  Henry  v.  Gold  Park  Min.  Co.,  15  Fed.  Rep.  649. 

1  Strong's  Ex'rs  v.  Baer,  35  Pa.  St.  333  ;  Edson  v.  Sprout,  33  Yt.  77  ;  McDer- 
mott  V.  Done;an,  44  Mo.  85. 

-  Myers  v.  Baltzell,  37  Pa.  St.  491 ;  Firebaugla  v.  Stone,  36  Mo.  Ill ;  Ellison 
t'.  Tuttle,  26  Tex.  283. 


345  GARNISHMENT    AFTER    SUIT    BY    DEFENDANT.       §    499 

preme  Court  of  Maine,  in  which  a  distinction  is  made  between 
cases  in  which  the  action  is  commenced  prior  to  the  attachment 
and  those  commenced  subsequent  tiiereto.  It  is  there  hehl,  tliat 
if  the  action  is  instituted  prior  to  the  attachment  suit,  the  judg- 
ment will  be  conclusive  in  garnishee's  favor  ;  but  if  the  garnish- 
ment is  pending  at  the  time  the  defendant  institutes  his  action 
against  the  garnishee,  it  will  not  be  permitted  to  cut  off  the 
right  of  the  plaintiff  in  attachment  to  take  issue  with  the  gar- 
nishee upon  the  question  of  his  indebtedness.^  This  brings  up 
again  the  question  of  priority  between  actions  for  the  same  de- 
mand, simultaneously  pending  between  attaching  creditors  and 
garnishees  on  the  one  hand,  and  attachment  defendants  and 
garnishees  on  the  other.*  The  question  again  arises,  whether, 
in  case  the  prior  action  is  the  attachment  suit,  its  pendency 
when  pleaded  by  the  garnishee  would  be  effectual  as  a  bar, 
or  a  suspension  of  the  subsequent  suit.  If  it  would  have  this 
effect  the  garnishee  would  be  protected  from  the  necessity  of 
twice  defending  against  an  action  for  the  same  debt.  But 
if,  from  the  difference  of  jurisdictions  in  which  the  two  actions 
are  pending,  priority  will  not  control,  the  party  summoned 
as  garnishee,  though  in  reality  not  indebted  to  the  defendant, 
may  be  required  to  defend  in  each  case. 

The  distinction  made  in  the  Maine  ruling  is  not  without 
merit ;  for  if  the  plaintiff  might  be  concluded  by  a  judgment 
rendered  in  a  suit  brought  after  his  attachment,  he  micrht  be 
deprived  of  the  benefit  of  the  proceeding  by  collusive  action  in 
which  the  defendant  suffered  defeat  for  the  express  purpose  of 
cutting  out  the  attachment. 

8  Webster  v.  Adams,  58  Me.  317. 

4  Supra,  §§  492,  493,  494.  See  also  Hooton  v.  Gamage,  11  Allen,  354. 


CHAPTER  XLI. 

EFF-CCT   OF    GARNISHMENT   PRIOR   TO     SUIT    BY    DEFENDANT. 

§  500.    Prior  garnishment  pleaded  in  abatement  by  attachment  defendant. 
§  501.    Prior  garnishment  as  ground  for  continuance  of  subsequent  suit  or 

stay  of  execution. 
§  502.    Effect  of  judgment  against  the  garnishee. 

§  503.    Effect  of  judgment  against  the  garnishee  and  a  satisfaction  thereof. 
§  504.    Essential  conditions  to  the  effectiveness  of  judgment  and  satisfaction 

as  a  defense — judgment  against  the  creditor. 
§  505.    The  validity  of  the  judgment  against  the  garnishee. 
§  506.    How  the  judgment  should  be  satisfied  to  constitute  a  valid  defense. 
§  507.    Payment  under  execution. 
§  508.    Judgment  in  favor  of  garnishee. 

§  500.  Prior  Gamislimeiit  Pleaded  in  Abatement  by  At- 
tacliment  Defendant. — In  the  last  chapter  we  have  undertaken 
to  show  the  effect  upon  the  proceeding  by  garnishment  of  a 
prior  action  by  the  principal  debtor  against  his  debtor,  who  is 
summoned  as  garnishee.  The  matter  considered  herein  is  the 
effect  upon  a  subsequent  action  of  a  prior  garnishment  at  the 
suit  of  the  plaintiff's  creditor.  The  two  subjects  are  closely 
related,  for  the  reason  that  they  involve  the  question  of  the 
garnishee's  liability  to  a  duplication  of  judgments  for  the  same 
debt. 

But  there  is  a  stronger  reason  for  giving  the  attaching  cred- 
itor the  full  benefit  of  the  advantage  gained  by  priority  in 
bringing  his  action  and  causing  the  garnishee  to  be  summoned, 
than  in  shutting  him  out  because  of  the  diligence  of  his  debtor 
in  suing  for  his  demand  prior  to  garnishment.  The  general 
purpose  of  the  attachment  law,  as  well  that  which  provides 
the  process  for  reaching  credits  and  property  in  the  hands  of 
third  persons,  as  that  which  proceeds  by  direct  seizure,  is  to 
apply  the  property,  rights,  and  credits  of  the  debtor  to  the 
payment  of  his  debts,  and  to  secure  them  for  that  purpose, 
pending  the  litigation  of  the  main  question.  The  fact  that  the 
creditor  has  brought  suit  against  his  debtor,  does  not  change 


347  GARNISHMENT    PRIOR   TO    SUIT.  §    500 

the  proprietary  nature  of  the  debt  sued  for.  It  is  still  a  credit, 
■  and  if  it  can  be  reached  without  injustice  or  undue  hazard  to 
the  garnishee,  there  is  no  better  reason  why  the  attachment 
plaintiff  should  not  have  the  benefit  of  this  security,  than  there 
is  why  he  should  not  avail  hirnself  of  a  similar  debt,  for  the 
recovery  of  which  no  suit  was  pending.  When  the  attach- 
ment plaintiff  is  beforehand  with  the  defendant  in  bringing  his 
action  and  attaching  the  debt,  to  allow  his  proceeding  to  be 
interrupted  by  a  subsequent  suit  by  the  defendant  against  the 
garnishee,  would  be  to  deprive  the  provisional  remedy  of  all 
force  and  effect.  To  suffer  both  actions  to  be  maintained  con- 
currently against  the  garnishee,  would  be  a  negation  of  the  doc- 
trine which  runs  through  the  entire  theory  of  the  law  of  gar- 
nishment— that  the  garnishee  is  a  mere  stakeholder,  who  is  to 
be  placed  in  no  worse  position  by  the  process  than  that  occu- 
pied by  him  before. 

For  these  reasons  the  rights  of  both  the  attachment  plain- 
tiff and  the  garnishee  will  be  protected  against  a  subsequent 
action  against  the  latter  for  the  same  debt.  The  manner  in 
which  this  protection  is  afforded  differs  in  the  different  juris- 
dictions where  the  question  has  been  raised.  In  many,  and 
perhaps  most  of  them,  the  Courts  have  either  expressly  de- 
cided that  the  prior  garnishment  might  be  pleaded  in  abate- 
ment to  the  subsequent  action,  or  in  the  opinions  delivered  the 
Judges  have  expressed  views  favorable  to  this  mode  of  proce- 
dure.^ In  some  of  the  cases,  where  the  question  is  not  directly 
in  issue,  the  opinion  is  expressed  that  the  pendency  of  the  gar- 
nishment proceedings  may  be  pleaded  in  abatement  or  In  bar. 
But  this  is  not  to  be  taken  as  though  there  were  a  choice  of 
remedies  between  the  plea  in  abatement  and  the  plea  in  bar, 
either  of  which  might  be  resorted  to.  When  the  attachment 
suit  is  still  pending,  and  the  provisional  judgment  has  not  been 
entered  against  the  garnishee,  the  proper  course  is  to  plead 
the  garnishment  in  abatement;^  as  the  garnishment  will  not  be 

1  "Wallace  v.  McConnell,  13  Pet.  136;  Mattingly  v.  Boyd,  20  How.  128;  Hasel- 
ton  V.  Monroe,  18  N.  H.  598;  Cocliran  v.  Fitch,  1  Sandf.  Ch.  142;  Embree  v. 
Hanna,  5  Johns.  101;  Irvine  v.  Lumbermen's  Bank,  2  Watts.  &  Serg.  190; 
Brown  v.  Somerville,  8  Md.  444;  Cheongwoi;.  Jones,  3  Wash.  C.  C.  359;  Clise 
V.  Freborn,  27  la.  280. 

2  Xearu.  Mitchell,  23  Mich.  382;  Fitzgerald  w.  Caldwell,  1  Yeates,  274;  Adams 
t.  Avery,  2  Pitts,  77;  Brook  u.  Smith,  ISalk.  280;  Evtinsj;.Matlack,8Phila.  271. 


§  500  EFFECT  OF  GARNISHMENT  348 

a  bai'  to  tlic  pi'incipal  defendant's  action  until  it  has  proceeded 
to  judgment  against  the  garnishee.^  And  it  seems  to  make  no 
difference  that  the  garnishment  took  place  in  a  State  foreign 
to  that  in  which  the  subsequent  suit  was  brought.^  Indeed, 
one  of  the  earliest  cases  in  the  State  of  New  York  in  which  the 
question  was  raised  was,  where  the  garnishee  was  summoned 
in  Maryland,  and  was  afterwards  sued  in  New  York  by  the  at- 
tachment defendant.  In  supporting  the  plea  in  abatement, 
Kent,  C.  J.,  places  great  stress  upon  the  liability  of  the  gar- 
nishee to  be  subjected  to  two  judgments  for  the  same  demand, 
as  the  principal  reason  why  he  should  not  be  sued  by  his  im- 
mediate creditor.^  The  same  opinion  at  one  time  prevailed  with 
the  Supreme  Court  of  Alabama ;  ®  but  a  different  mode  of  ac- 
complishing substantially  the  same  result  has  since  come  into 
favor  in  that  State. '^  Where  the  subsequent  action  is  brought 
by  the  assignee  of  a  debt,  the  question  whether  the  attach- 
ment can  be  pleaded  in  abatement  or  otherwise  taken  advan- 
tage of,  cannot  be  disposed  of  as  a  mere  question  of  priority. 
If  the  assignee  occupies  the  advantageous  position  of  an  inno- 
cent purchaser  for  value,  or  the  garnishee  had  notice  of  the 
assignment  prior  to  judgment  against  him,  the  prior  attachment 
will  be  no  defense  to  the  action  by  the  assignee.^ 

When  the  prior  attachment  of  the  debt  may  be  j^leaded  in 
abatement,  the  plea  must  be  sufficient  in  all  respects  to  show 
that  the  attachment  is  of  the  same  debt,  and  whether  of  the 
whole  or  only  part ;  otherwise  it  will  be  held  bad  on  demurrer.^ 

In  Ohio,  an  order  of  Court  requiring  the  garnishee  to  pay 
into  Court  the  amount  of  his  indebtedness,  under  process  issued 
in  another  State,  was  held  a  good  defense  to  an  action  by  the 
attachment  defendant,  although  it  did  not  appear  that  the* 
amount  was  paid  into  the  Court  having  cognizance  of  the  gar- 
nishment proceeding. ^*^  But  when  the  attachment  set  up, 
either  as  a  defense  or  in  abatement,  is  one  which  was  instituted 

8  Nathan  v.  Giles,  5  Taunt.  558. 
4Cocliran  v.  Fitch,  1  Sandf.  Ch.  142. 

5  Embree  v.  Hanna,  5  Johns.  101. 

6  Crawford  v.  Clute,  7  Ala.  157;  41  Am.  Dec.  92. 

7  Infra,  §  501. 

8  Mason  v.  Noonan,  7  Wis.  609. 

9  Crawford  v.  Clute,  7  Ala.  157;  41  Am.  Dec.  92. 
w  Baltimore  etc.  K.  Co.  v.  May,  25  Ohio  St.  347. 


349  PRIOR  TO  SUIT  BY  DEFENDANT.         §  501 

by  tlie  party  who  pleads  it,  the  plea  will  not  be  allowed. 
This  anomalous  condition  of  thin£>;s  occurs  when  the  garnish- 
ment is  of  a  debt  due  by  the  plaintiff  to  the  defendant.  Where 
a  proceeding  of  this  kind  Avas  instituted  in  the  Supreme  Court 
of  New  York,  after  which  the  defendant  broujxht  suit  against 
the  attachment  plaintiff  in  the  United  States  Circuit  Court,  to 
which  defendants  pleaded  their  prior  garnishment  of  the  debt, 
such  plea  was  held  bad  on  demurrer.^^ 

§  501.  Prior  Garnishment  as  Ground  for  Continuance  of  Sub- 
sequent Suit,  or  Stay  of  Execution. — Another  method  which  is 
quite  as  effective  to  accomplish  the  purpose  of  a  plea  in  abate- 
ment, and  one  which  for  some  reasons  may  fairly  be  regarded 
as  preferable,  is  that  of  suspending  all  proceedings  in  the  ac- 
tion as  soon  as  the  pendency  of  the  prior  garnishment  is  called 
to  the  attention  of  the  Court.  The  principal  objection  to  the 
plea  in  abatement  is  that  it  compels  the  plaintiff  to  commence 
his  action  de  novo.)  upon  the  bare  possibility  that  the  garnishee 
will  be  charged.  Upon  the  other  hand,  it  may  be  said  that 
the  defendant  in  attachment,  knowing  the  debt  to  be  attached, 
is  in  the  wronfj  when  he  commences  an  action  against  his  debt- 
or  for  the  demand  embraced  in  the  pending  attachment  suit. 
But  this  is  not  true  from  every  conceivable  point  of  view.  The 
debtor  who  is  summoned  as  garnishee  may  be  inclined  to  re- 
sist the  demand,  and  the  attachment  defendant  may  not  be 
prepared  to  admit  the  justico  of  the  plaintiff's  claim.  In  case 
the  principal  suit  is  defeated  on  the  merits,  the  defendant  may 
have  lost  decided  advantages  because  of  his  inability  to  main- 
tain an  action  against  his  debtor  pending  the  garnishment  pro- 
ceeding. No  one  is  Injured  by  his  bringing  the  suit,  provided 
It  is  not  allowed  to  Interfere  with  the  prior  attachment ;  and 
at  the  same  time  the  garnishee  Is  amply  protected  against  the 
second  judgment.  This  is  accomplished  by  continuing  the 
second  case,  or  staying  the  execution  until  the  determination  of 
the  attachment  suit.^     In  McKeon  v.  McDermott,^  one  of  the 

11  New  England  Screw  Co.  v.  Bliven,  3  Blatch.  240. 

1  Crawford  t).  Slade,  9  Ala.  887;  44  Am.  Dec.  463;  Piersonw,  McCaliill,  21  Cal. 
123. 

a  22  Cal.  667. 


§   501  ErFECT   OF   GARNISHMENT  350 

errors  assigned  was  the  action  of  the  Court  in  sustaining  a  de- 
murrer to  defendant's  answer,  setting  up  as  a  defense  to  the 
action  the  pendency  of  a  suit  in  which  defendant  had  been 
garnished.  Crocker,  J.,  in  delivering  the  opinion,  says : 
"  There  was  no  error  in  this  action  of  the  Court.  The  prop- 
er course  in  this  case  was  for  the  defendant  to  set  up  these 
facts  in  an  affidavit,  and  move  the  Court  for  a  stay  of  proceed- 
ings in  this  action,  until  the  proceedings  in  the  action  brought 
by  the  attaching  creditor  should  be  disposed  of.  He  would 
have  been  entitled  to  relief  in  that  mode."  In  another  case 
decided  by  the  same  Court,  the  reason  given  for  preferring  sus- 
pension to  abatement  is,  that  if  the  mere  pendency  of  the  gar- 
nishee worked  a  disability  to  sue,  the  plaintiff  might  be  un- 
reasonably delayed,  and  by  one  or  more  collusive  proceedings 
the  Statute  of  Limitations  might  bar  the  claim.^  The  manner 
and  mode  of  taking  advantage  of  the  pendency  of  the  garnish- 
ment must  depend  upon  the  stage  of  the  proceedings  in  the 
subsequent  suit,  at  which  it  is  brought  to  the  notice  of  the  Court. 
In  Massachusetts,  the  method  adopted  to  save  the  garnishee's 
rights,  without  abating  the  subsequent  writ,  when  the  objection 
was  raised  prior  to  judgment,  was  to  continue  the  case 
while  the  garnishment  process  was  pending.*  The  same 
result  is  attained,  by  ordering  a  stay  of  execution  when 
judgment  has  been  rendered  in  the  subsequent  suit.^  In  Ver- 
mont, this  latter  method  seems  to  be  favored.  The  direct 
action  by  the  attachment  defendant  is  allowed  to  proceed  to 
judgment,  and  an  order  is  made  staying  execution  until  the 
question  of  garnishee's  liabilty  is  determined  in  the  attachment 
suit.^  This  practice  is  also  followed  in  Georgia,'^  and  perhaps 
in  other  States.  The  difference  between  the  plea  in  abate- 
ment, the  motion  for  suspension  of  the  action,  and  the  stay  of 
execution  after  judgment,  are  only  different  modes  of  accom- 
plishing the  same  result,  which  is  to  protect  the  debtor  from 

»  McFadden  v.  O'Donnell,  18  Cal.  160. 

*  Winthrop  v.  Carleton,  8  Mass.  456. 

6  Crawford  v.  Clute,  7  Ala.  157  ;  41  Am.  Dec.  92.  See  Gallego  v.  Gallego,  2 
Brock.  C.  C.  285  ;  Fitzgerald  v.  Caldwell,  4  Dall.  251. 

6  Morton  v.  Webb,  7  Vt.  123  ;  Jones  v.  "Wood,  30  Vt.  268.  See  also  Smith  v. 
Blatchford,  2  Ind.  184. 

1  Shealy  v.  Toole,  56  Ga.  210. 


351  PRIOR   TO    SUIT   BY    DEFENDANT.  §    501 

being  charged  as  garnishee,  and  proceeded  against  by  execu- 
tion twice  for  the  same  debt ;  and  as  long  as  the  end  is  accom- 
plished, the  means  employed  are  only  of  minor  consequence. 
But  when  the  interests  of  the  defendant  in  attachment  are 
carefully  considered,  one  of  the  methods  that  preserve  his  ac- 
tion' against  the  debtor  during  the  pendency  of  the  garnish- 
ment would  seem  to  be  the  most  reasonable.  The  mere  fact 
that  two  actions  against  the  garnishee,  whereby  he  may  be 
called  upon  to  resist  the  same  demand,  are  permitted  to  be 
prosecuted  contemporaneously,  is  no  additional  hardship  for 
the  garnishee.  It  is  as  well  that  the  actions  should  be  pend- 
ing at  the  same  time,  as  that  they  might  be  brought  success- 
ively, provided  he  is  not  required  to  defend  them,  except  in 
their  order.  If  the  judgment  in  favor  of  garnishee,  on  hia 
denial  of  indebtedness,  or  any  affirmative  defense,  would  bar 
the  subsequent  action  for  the  same  debt,  it  would  have  the 
game  effect  upon  the  suspended  action  after  the  garnishment 
was  disposed  of.  The  pendency  of  the  subsequent  suit  would 
be  at  most  a  matter  of  Inconvenience  to  the  garnishee,  and 
would  not  affect  the  rights  of  the  plaintiff"  in  attachment,  nor 
obstruct  his  employment  of  the  provisional  remedy  In  the 
least ;  while  the  abatement  of  the  attachment  defendant's  suit 
might  seriously  embarrass  him  in  the  future,  if  not  work  a 
permanent  loss  of  his  claim. 

An  example  of  the  ineffectiveness  of  a  prior  garnishment, 
as  against  a  subsequent  process  issuing  out  of  a  Coui't  of 
different  jurisdiction,  is  furnished  by  the  Supreme  Judicial 
Court  of  Massachusetts.  The  owners  of  a  coasting  vessel,  af- 
ter having  been  summoned  as  garnishees  of  a  seaman  in  their 
employ,  were  compelled,  by  subsequent  process  from  a  Court 
of  Admiralty,  upon  a  libel  filed  by  the  seaman  against  the  ves- 
sel, and  after  full  disclosure  of  all  the  facts  In  connection  with 
the  prior  garnishment,  to  pay  the  amount  of  the  wages  due  ; 
and  it  was  held  that  after  the  payment  of  this  judgment,  the 
owners  could  not  be  charged  as  garnishees ;  but  it  was  ques- 
tioned in  the  same  case,  whether  a  seaman's  wages  could  be 
attached  by  garnishment.^ 

8  Eddy  V.  O'Hara,  132  Mass,  5& 


§   502  EFFECT   OF   GARNISHMENT  352 

§  502.  Effect  of  Judgment  against  the  Gamisliee. — If  the 
pendency  of  the  garnishment  would  operate  to  suspend  the  at- 
tachment defendant's  right  of  action,  or  abate  it,  it  would 
seem  to  follow  that  the  judgment  against  the  garnishee  in  the 
attachment  suit  would  be  a  bar  to  a  subsequent  recovery  by 
the  defendant  pro  tanto.  This  is  the  English  doctrine,-^  and 
has  been  adopted  in  several  of  the  States  of  the  Union.  But 
both  upon  principle  and  authority,  the  justice  of  any  such  rule 
has  been  questioned.  In  Massachusetts,  it  is  laid  down  that 
until  the  garnishee  has  paid  the  judgment,  or  "  until  an  execu- 
tion has  been  awarded,  and  the  garnishee  has  been  called  on 
or  compelled  to  pay,  it  is  not  such  a  payment,  merger,  or  dis- 
charge of  the  original  debt,  as  to  be  pleaded  in  bar."  ^  Nev- 
ertheless, it  is  admitted  by  the  same  Court  that  the  judgment, 
so  long  as  it  may  be  executed,  is  a  ground  for  suspension  of 
judgment  in  favor  of  the  attachment  defendant,  although  the 
judgment  is  by  a  foreign  Court.^  That  this  is  the  better  doc- 
trine to  rely  upon,  as  a  rule,  is  apparent  from  a  consideration  of 
the  possibilities  of  doing  injustice,  by  holding  that  the  judg- 
ment should  in  every  case  be  a  bar  to  the  subsequent  action. 
The  judgment  until  paid  is  no  satisfaction  of  the  judgment 
against  the  principal  defendant.  The  garnishee  may  never  be 
obliged  to  satisfy  the  judgment  against  himself.  Suppose  it 
to  be  successfully  pleaded  in  bar,  and  the  attachment  plaintijBf 
should  subsequently  enforce  his  judgment  against  the  defend- 
ant in  the  attachment  suit,  by  levy  upon  the  latter's  property. 
What  becomes  of  the  debt  attached?  Certainly,  the  judg- 
ment against  the  garnishee  cannot  be  enforced  by  the  attach- 
ment plaintiff,  whose  principal  judgment  has  been  satisfied. 
If  the  action  by  the  immediate  creditor  of  the  garnishee  is  once 
harred,  it  is  barred  forever,  and  the  only  effect  of  the  garnish- 
ment would  be  to  extinguish  this  debt,  without  benefiting  the 
plaintiff  by  whom  payment  had  been  interrupted.  It  is  no  so- 
lution of  such  a  dilemma  to  provide  the  party  whose  property 
has  been  thus  fruitlessly  confiscated  with  some  sort  of  an  inde- 

iMcDaniels  v.  Hughes,  3  East.  367;  Savage's  Case,  1  Salk.  291;   Turbill's 
Case,  1  Saunders,  67. 
2  Meriam  v.  Rundlett,  13  Pick.  511. 
8  Meriam  v.  Eundlett,  13  Pick.  511. 


363  PRIOR  TO   SUIT   BY   DEFENDANT.  §   502 

pendent  proceeding  in  equity  agafnst  the  plaintiff,  if  any  such 
there  be.  Plaintiff  may  not  have  gone  out  of  his  way  to  in- 
flict an  injury  upon  his  debtor.  Indeed,  he  may  have  brought 
about  this  state  of  things  by  pursuing  the  remedies  provided 
by  law,  and  may  in  the  end  have  resorted  to  an  execution  on 
his  principal  judgment,  in  preference  to  that  against  the  gar- 
nishee, because  it  afforded  the  most  speedy  and  certain  relief. 
The  defendant  may  have  resorted  to  his  action  against  the  gar- 
nishee in  order  to  prevent  his  claim  being  barred  by  t!ie  Stat- 
ute of  Limitations,  which  might  have  resulted  from  his  wait- 
ing for  the  lapsing  of  the  judgment  against  the  garnishee. 
Yet  the  plea  of  an  unsatisfied  judgment  against  the  gar- 
nishee, in  bar  of  a  subsequent  action  for  the  same  debt, 
has  been  sustained  'in  a  number  of  cases  where  none  of  these 
special  reasons  for  holding  otherwise  seem  to  have  appeared.* 
Thus,  in  Massachusetts,  in  an  earlier  case  than  Meriam  v. 
Rundlett,^  where  we  have  seen  they  regarded  the  judgment  as 
ground  only  for  suspension  or  abatement,  it  was  held  that  it 
was  a  bar  to  the  subsequent  action.^  It  is  fair  to  presume,, 
however,  that  in  a  case  presenting  facts  that  would  render  a 
modification  necessary,  the  Courts  of  some  of  these  States 
would  qualify  their  statement  of  the  general  doctrine,  and  re- 
quire something  more  as  a  bar  to  defendant's  action  for  his 
debt,  than  that  it  had  been  merged  in  a  judgment  against  the 
garnishee.  It  would  hardly  be  held  a  bar  so  long  as  it  was 
merely  provisional  in  its  character,  depending  upon  the  recov- 
ery of  judgment  against  the  principal  defendant.  Indeed,  it 
was  decided  in  Maine,  where  we  have  seen  the  judgment  is 
pleadable  in  bar,  that  a  mere  judgment  by  default  against  gar- 
nishee, liable  to  be  set  aside  on  scire  facias,  would  not  be  a  bar 
to  the  action  by  defendant  in  attachment.^ 

<  Matthews  v.  Houghton,  11  Me.  377  ;  McAllister  v.  Brooks,  22  Me.  80  ;  38 
Am.  Dec.  282  ;  Perkins  v.  Parker,  1  Mass.  117  ;  Norris  v.  Hall,  18  Me.  332  ;  Co- 
burn  V.  Currens,  1  Bush,  242  ;  King  v.  Vance,  46  Ind.  246. 

s  13  Pick.  511. 

6  Hull  V.  Blake,  13  Mass.  153.  See  also  Cheongwo  v.  Jones,  3  Wash.  C.  C. 
359  ;  Covert  v.  Nelson,  8  Blackf.  265  ;  Sessions  v.  Stevens,  1  Fla.  233. 

''  Sargeant  v.  Andrews,  3  Me.  199.  In  this  State,  under  a  statute  of  1821,  one 
summoned  as  garnishee  of  another  was  protected  against  any  claim  upon  him 
by  defendant,  during  the  pendency  of  the  garnishment  proceeding,  and  a 
judgment  against  the  garnishee  was  a  bar  to  an  action  on  such  claim  by  de- 
ll.   Attach.— 23. 


§   502  EFFECT   OP   GARNISHMENT  354 

The  broad  statement  that  satisfaction  of  the  judgment  is 
necessary  to  entitle  the  garnishee  to  plead  it  In  defense  of  a 
subsequent  action  for  the  debt,^  may  carry  the  rule  further 
than  would  be  necessary  or  just  in  every  case;  but  the  doc- 
trine that  he  should  be  able  to  show  either  that  the  judgment 
was  satisfied ;  that  the  garnishee's  property  had  been  levied 
on  ;  or  at  least,  that  execution  was  issued  for  that  purpose,  and 
likely  to  be  levied,  would  not  be  asking  too  much,  before  the 
party  to  whom  he  is  prinmrlly  indebted  should  be  forever  con- 
cluded from  asserting  his  clalm.^ 

Where  the  judgment  against  the  garnisheeis  the  result  of  false 
disclosures  by  the  garnishee,  or  collusion  between  him  and  the 
principal  parties  to  the  attachment  suit,  it  may  be  vacated  in 
Michigan,  In  the  discretion  of  the  Court ;  and  if  the  garnishee 
has  already  made  payment,  it  will  not  protect  him  against  an 
action  by  his  actual  creditors.  And  it  is  held  that  the  plain- 
tiff in  attachment,  who  has  received  the  money,  holds  it  to  the 
use  of  the  creditors,  to  whom  it  must  be  refunded  on  demand 
after  the  judgment  against  the  garnishee  is  vacated,  and  plain- 
tiff cannot  retain  the  amount  of  an  attorney's  fee  paid  to  the 
garnishee's  attorney.^*' 

Where,  for  any  reason,  the  judgment  has  ceased  to  be  of 
any  force  against  the  garnishee,  there  is  the  strongest  ground 
that  could  be  imagined  why  it  should  be  held  not  only  as  no 
bar  to  the  subsequent  suit,  but  that  it  would  not  entitle  the 
debtor  to  a  continuance,  or  stay  of  execution.  Thus,  where 
the  local  law  made  certain  requirements  of  the  plaintiff  in  at- 

fendant,  except  for  the  excess  thereof  over  the  amount  of  the  judgment.  But 
the  judgment  against  the  garnishee  was  no  discharge  of  the  judgment  against 
the  debtor,  tJiough  by  means  of  the  suit  against  the  garnishee,  payment  by 
the  garnishee  to  the  debtor  was  prevented,  and  by  the  subsequent  insolvency 
of  the  garnishee,  the  debt  was  lost.  Nor  was  the  judgment  discharged  by  the 
neglect  of  the  creditor,  for  twenty  years,  to  sue  out  a  writ  of  scire  facias 
against  the  garnishee,  who  for  that  time  continued  insolvent.  It  was  also 
held  that  the  principal  defendant  in  attachment  could  not,  after  the  lapse  of 
this  period,  maintain  assumpsit  against  the  creditor  for  such  neglect,  it  not 
appearing  that  suing  out  of  a  scire  facias  would  have  been  of  any  service  to 
the  complaining  debtor.    Noble  v.  Merrill,  48  Me.  140. 

8  Farmer  v.  Simpson,  6  Tex.  303.  See  Brannonu.  Noble,  8  Ga.  549;  Cook  v. 
Field,  3  Ala.  53. 

9  See  Brown  v.  Somerville,  8  Md.  444  ;  Lowry  v.  Lumberman's  Bank,  2 
Watts.  &  Serg.  210. 

10  First  National  Bank  v.  Mellen,  45  Mich.  413. 


355  PRIOR  TO    SUIT   BY   DEFENDANT.  §   503 

tachment  in  order  to  keep  his  judgment  alive,  and  these  being 
neglected  would  leave  the  judgment  in  a  state  of  suspension, 
from  which  it  could  not  be  revived  by  scire  facias^  the  Court 
held  that  a  judgment  in  this  condition  had  ceased  to  be  a  lien, 
and  was  no  defense  to  an  action  by  the  attachment  defendant 
on  his  original  demand.^^ 

§  503.  Effect  of  Jndgmeiit  against  the  Garnishee,  and  a  Sat- 
isfaction thereof. — The  question  under  consideration  in  this 
chapter  is  the  effect  of  garnishment  upon  the  right  to  bring  a 
subsequent  action  against  the  garnishee  ;  and  it  remains  to 
glance  at  the  satisfaction  of  the  judgment  in  garnishment  in 
this  connection.  Obviously,  this  must  end  all  controversy  in 
regard  to  this  particular  debt.^  When  the  judgment  is  not 
only  rendered,  but  the  amount  thereof  is  paid,  it  is  a  complete 
defense  to  a  subsequent  action,  so  far  as  such  payment  goes 
to  extinguish  the  debt  owing  by  the  garnishee.^  And  it  does 
not  seem  to  affect  the  application  of  the  principle,  that  the 
judgment  paid  by  the  garnishee  was  rendered  in  a  foreign 
Court,^  provided  the  judgment  is  proved  by  competent  evi- 
dence, which  is  an  indispensable  condition.*  The  judgment,  if 
binding  on  the  garnishee,  is  binding  upon  the  principal  defend- 
ant, and  all  parties  in  privity  with  either.  Thus,  where  a  de- 
positary was  charged  as  garnishee  of  the  depositor's  guardian, 
in  an  action  for  necessaries  furnished  the  depositor,  and  had 
been  compelled  to  pay  the  judgment  obtained  against  him, 
such  payment  was  held  a  complete  defense  to  an  action  by  the 
depositor  after  the  guardianship^  had   been    revoked.^     And 

n  Flower  v.  Parker,  3  Mason,  247. 

1  Brown  v.  Dudley,  33  N.  H.  511 ;  Ladd  v.  Jacobs,  64  Me.  347  ;  Killsaw.  Ler- 
mond,  G  Me.  116  ;  Gunn  v.  Howell,  35  Ala.  144  ;  Ross  v.  Pitts,  39  Ala.  606. 

2  Woods  V.  Milford  etc.  Savings  Inst.,  58  N.  H.  184  ;  Dole  v.  Boutwell,  1  Al- 
len, 286 ;  Moore  v.  Spackmau,  12  Sergeant  &  R.  287  ;  Allen  v.  Watt,  79  Ills. 
284  ;  Coates  v.  Roberts,  4  Rawle,  100  ;  McAllister  v.  Brooks,  22  Me.  80  ;  38  Am. 
Dec.  282  :  Anderson  v.  Young,  21  Pa.  St.  443  ;  Cook  v.  Field,  3  Ala.  53 ;  36 
Am.  Dec.  436  ;  Adams  v.  Filer,  7  Wis.  306  ;  Noble  v.  Thompson  Oil  Co.,  69  Pa. 
St.  409  ;  Cheairs  v.  Slaten,  3  Humph.  101. 

8  Noble  V.  Thompson  Oil  Co.,  69  Pa.  St.  409  ;  Baltimore  etc.  R.  Co.  v.  May, 
25  Ohio  St.  347  ;  Cochran  v.  Fitch,  1  Sandf .  Ch.  142  ;  Barrow  v.  West,  23  Pick. 
270 ;  Wigwall  v.  Union  etc.  Co.,  37  Iowa,  129 ;  Taylor  v.  Phelps,  1  Harr.  & 
Gill,  492  ;  Morgan  v.  Neville,  74  Pa.  St.  52. 

*  Barton  v.  Smith,  7  Iowa,  85. 

6  Woods  V.  Milford  etc.  Inst.,  68  N.  H.  184. 


§    503  EFFECT   OF   GARNISHMENT  356 

when  the  judgment  is  a  defense  in  favor  of  the  garnishee,  it 
would  have  the  same  effect  when  invoked  by  any  one  whose 
liability  depended  upon  that  of  the  garnishee.  The  satisfac- 
tion of  the  judgment  against  the  garnishee  is  an  extinguish- 
ment of  his  debt  to  his  principal  creditor,  and  has  the  same 
effect  as  though  it  were  paid  to  the  creditor  directly.  Hence, 
where  an  original  judgment  was  attached  by  garnishment  of 
the  judgment  debtor,  but  prior  thereto  one  had  become  liable 
as  surety  on  the  bond  given  by  the  debtor  on  appeal,  and  af- 
ter the  judgment  in  garnishment  the  same  was  satisfied,  such 
satisfaction  was  held  to  enure  to  the  benefit  of  the  surety  on 
the  bond  when  sued  by  the  holder  of  the  first  judgment.^  The 
question  to  be  determined  is  whether  the  debt  has  been  satisfied, 
and  the  extent  of  such  satisfaction,  and  it  matters  not  hy  whom 
it  has  been  paid,  nor  to  whom  paid,  provided  it  be  to  one  who 
is  entitled  to  receive  it  from  the  one  who  pays.  Hence,  where 
one  of  several  joint  debtors  in  the  garnishment  proceeding  has 
paid  the  debt  for  which  the  judgment  was  obtained,  it  will  be 

6  Noble  V.  Thompson  Oil  Co.,  69  Pa.  St.  409.  There  are  two  cases  reported  in 
this  State,  embracing  the  same  parties  and  so  many  of  the  same  incidents, 
that  they  appear  to  have  originated  in  the  same  transaction,  and  to  have  been 
decided  in  refertence  to  the  same  subject  of  action.  There  is  an  apparent  in- 
consistency between  the  two  decisions,  wliich,  however,  may  be  more  appar- 
ent than  real,  for  the  reason  that  the  circumstances  that  governed  the  later 
case  may  not  have  figured  in  the  earlier.  The  first  case  was  the  one  cited 
above,  in  which  an  action  was  brought  against  the  surety  on  an  appeal  bond, 
and  it  appeared  that  after  the  appeal  the  judgment  debtor  was  summoned  as 
garnishee  of  his  creditor  in  New  York,  and  judgment  was  rendered  against 
him,  which  he  paid,  anel  such  payment  was  hekl  to  discharge  the  surety  in 
Pennsylvania.  The  later  case  was  also  Noble  ?'.  Thompson  Oil  Co.  (79  Pa.  St. 
354  ;  21  Am.  Rep.  66),  in  which  it  appeared  that  judgment  was  obtained  in 
Pennsylvania  ;  tliat  the  judgment  debtor  was  summoned  as  garnisliee  of  the 
judgment  creditor  in  New  York  ;  that  judgment  was  obtained  against  the 
garnishee,  and  he  paid  the  judgment.  But  prigr  to  the  garnishment,  the  orig- 
inal judgment  was  assigned  for  value,  of  whicli  assignment  the  garnishee  had 
no  notice  prior  to  garnishiiKnt.  Notwithstanding  tliis  want  of  notice  at  the 
time  of  service  of  summons,  it  seems  that  notice  was  received  in  time  to  inter- 
pose the  assignment  as  a  defense  to  the  garnishment  proceeding  ;  and  mainly 
for  the  reason  that  the  garnishee  made  too  tame  and  ineffectual  a  defense — 
did  not  bring  the  foreign  assignee  into  the  case  in  New  York— and  did  not 
press  upon  the  attention  of  the  Court  the  prior  assignment,  the  judgment  and 
satisfaction  thereof  would  not  protect  the  garnisliee  against  the  assignee's 
action  against  him.  Consequently,  the  debtor  was  compelled  to  make  dou- 
ble payment  of  the  same  demand  ;  once  to  the  creditors  of  the  assignor,  by 
the  judgment  of  the  New  York  Court,  and  once  to  the  assignee,  by  the  judg- 
ment of  the  Pennsylvania  Court. 


857  TEIOR  TO    SUIT   BY    DEFENDANT.  §   504 

for  the  benefit  of  his  co-debtors,  each  of  whom  may  rely  on  it 
as  a  defense  to  a  subsequent  action  by  the  original  creditor  J 

The  extent  to  which  the  payment  of  the  judgment  in  gar- 
nishment will  satisfy  the  original  demand  against  the  garnishee 
dejjends,  of  course,  upon  the  respective  magnitudes  of  the  two 
claims.  If  the  judgment  obtained  by  the  attaching  creditor 
is  sufficient  to  comprehend  the  entire  indebtedness  of  the  gar- 
nishee, payment  of  the  latter  will  extinguis^h  his  debt  to  the  de- 
fendant in  attachment.  And  where,  in  the  action  by  the  defend- 
ant, after  such  judgment  and  satisfaction,  there  was  no  show- 
ing to  the  contrary,  it  was  presumed  that  the  amount  recov- 
ered from  the  garnishee  was  equal  to  his  entire  indebtedness  to 
his  immediate  creditor.^  But  no  such  presumption  arises  from 
the  mere  fact  that  the  amount  of  the  judgment  against  the 
garnishee  is  less  than  defendant's  indebtedness  to  the  attach- 
ment plaintiff.  It  may  be  so  found  and  still  leave  the  garnishee 
indebted  to  the  defendant,  for  such  finding  is  not  absolutely  bind- 
ing upon  the  defendant.^  It  matters  not  how  the  amount  of  the 
garnishee's  indebtedness  is  arrived  at,  whether  by  his  own  admis- 
sions, or  from  other  evidence  in  the  possession  of  the  plaintiff  in 
attachment,  provided  it  has  not  been  through  defendant's  con- 
nivance, or  willful  suppression  of  facts,  or  some  conduct  or 
participation  In  the  controversy  between  the  plaintiff  and  gar- 
nishee, by  which  the  defendant  is  estopped  from  controverting 
the  conclusion  reached  ;  the  judgment  against  the  garnishee 
will  not  prevent  his  original  creditor  from  suing  and  recover- 
ing any  sum  over  and  above  the  amount  of  such  judgment  aa 
he  may  be  able  to  show  to  be  due.^'^ 

§  504.  Essential  Conditions  to  the  Effectiveness  of  Judg- 
ment and  Satisfaction  as  a  Defense  —  Judgment  against  the 
Creditor. — One  of  the  essential  features  of  a  judgment  against 
the  garnishee,  to  render  his  payment  thereof  a  valid  defense  to 
a  subsequent  action  on  the  same  demand,  is,  that  there  should 

T  Cook  V.  Field,  3  Ala.  53  ;  36  Am.  Dec.  436. 

8  McAllister  r.  Brooks,  22  Me.  80  ;  38  Am.  Dec.  282. 

9  Tarns  )•.  Bullitt,  35  Pa.  St.  308  :  Robeson  v.  Carpenter,  7  Mart.  X.  S.  30  :  Bax- 
ter V.  Vincent,  6  Vt.  014. 

1"  Brown  v.  Dudley,  33  N.  H.  511 ;  Barton  v.  Albright  29  Ind.  489  ;  Cameron 
V.  StoUenwerck,  6  Ala.  704. 


§    504  EFFECT  OF   GARNISHMENT  358 

also  be  a  valid  judgment  against  his  creditor,  who  was  the  de- 
fendant in  attachment.  The  judgment  against  the  garnishee 
depends  for  its  validity  upon  a  valid  judgment  against  the  de- 
fendant.^ It  Is  not  suflScient,  however,  that  the  principal 
judgment  shall  be  against  the  defendant ;  he  must  at  the  time 
be  the  garnishee's  creditor.  Of  course,  it  is  the  object  of  the 
proceeding  to  summon  as  garnishees  only  those  who  are  debt- 
ors of  the  principal  defendant,  or  have  his  property  in  their 
possession,  or  under  their  control.  But  this  purpose  may  be 
defeated  by  an  assignment  of  the  debt,  or  a  transfer  of  the 
chattel  prior  to  garnishment.^  When  the  assignment  takes 
place,  and  the  garnishee  is  notified  thereof  in  time  to  give  the 
assignee  notice  of  the  garnishment,  and  the  judgment  against 
him  is  obtained  upon  his  willful  default  after  such  notice,  it  will 
not  serve  him  as  a  defense  to  a  subsequent  action  by  the  as- 
signee.^ And*  where  the  statute  provides  means  for  the  pro- 
tection of  the  garnishee,  by  mere  disclosure  of  the  assign- 
ment, after  which  the  assignee  is  cited  to  appear  and  propound 
his  claim,  his  failure  to  make  such  disclosure,  provided  he  be 
notified  of  the  assignment  in  time,  will  not  be  excused  by  the 
fact  that  such  assignee  knew  of  the  pendency  of  the  garnish- 
ment proceeding.*  By  citation  the  assignee  becomes  a  party 
to  the  judgment,  and  will  be  bound  thereby  to  the  same  extent 
as  the  original  parties.  But  the  judgment  rendered  against 
the  garnishee,  and  paid  by  him,  is  only  binding  on  the  parties 
thereto,  and  those  in  privity  with  them.^ 

The  judgment  thus  obtained  must  be  in  all  essential  particu- 
lars regular,  and  in  some  respects  it  behooves  the  garnishee  to 
guard  the  rights  of  the  defendant  as  though  they  were  his  own, 
for  the  reason  that  his  exemption  from  future  liability  depends 

1  This  brancli  of  the  subject  will  be  pursued  further  in-a  subsequent  chapter. 
Post,        ;  Arnold  v.  Gullatt,  68  Ga.  810. 
■^Ante,  Chs.  XXXIIT,  XXXYI,  XXXVH. 

3  Wardle  v.  Briggs,  131  Mass.  518  ;  Yocum  w.  "White,  36  Iowa,  288  ;  Noble  v. 
Thompson  Oil  Co.,  79  Pa.  St.  354  ;  21  Am.  Eep.  66  ;  Smoot  v.  Eslava,  23  Ala. 
659  ;  58  Am.  Dec.  310  ;  Prescott  v.  Hull,  17  Johns.  284  ;  Bunker  t\  Gilmore,  40 
Me.  88  ;  Casey  v.  Davis,  100  Mass.  124  ;  Greentreeu.  Eosenstock,  61 N.  Y.  593  ; 
Marsh  v.  Davis,  24  Vt.  363  ;  Ante,  §§  371,  471. 

4  See  Born  v.  Staaden,  24  111.  320. 

o  Wise  V.  Hilton,  4  Me.  435  ;  Lawrence  v.  Lane,  9  111.  354;  Miller  v.  McLain, 
10  Yerger,  245;  Dobbins  v.  Hyde,  37  JNIo.  114  ;  Oliat/'.Figerous;,  1  lilcMullan, 
203. 


359  PRIOR  TO   SUIT  BY   DFFENDANT.  §   505 

upon  the  validity  of  the  principal  judgment.^  He  must  sec  to  it 
that  the  Court  has  jurisdiction  of  the  subject  matter,  and  of  the 
parties  to  be  boundJ  And  it  is  not  always  sufficient  that  the 
proceedings  are  apparently  regular,  and  jurisdiction  complete, 
if  not  so  in  reality.  "Where  the  defendant  in  attachment  was 
sued  and  served  as  a  non-resident,  when  in  fact  he  was  dead, 
and  on  judgment  being  obtained  against  the  garnishee,  which 
was  based  upon  a  judgment  thus  obtained  in  the  principal  ac- 
tion, payment  by  the  garnishee  was  held  no  bar  to  a  subsequent 
action  by  the  administrator  of  the  decedent.^  Where  the 
judgment  against  the  garnishee  was  rendered  by  a  Justice  of 
the  Peace  who  never  acquired  jurisdiction  of  the  jirinclpal  case, 
it  was  held  no  protection  against  a  subsequent  action  by  the 
principal  defendant.^  And  where  the  judgment  paid  by  the 
garnishee  was  rendered  in  respect  to  a  promissory  note  of 
which  he  was  maker,  and  the  subsequent  action  was  by  an  in- 
dorsee who  was  not  made  a  party  to  the  contest  In  garnish- 
ment, it  was  held  that  the  payment  was  no  defense,  though 
the  indorsee  had  notice  of  the  fact  that  the  transfer  to  his 
immediate  indorser  was,  in  such  proceeding,  attacked  for 
fraud.KJ 

§  505.  The  Validity  of  the  Judgment  against  the  G-ar- 
nishee. — Aside  from  the  question  of  the  necessity  for  a  valid 
judgment  against  the  defendant,  as  a  support  to  the  auxiliary 
judgment  which  the  garnishee  satisfies,^  there  are  other 
grounds  upon  which  the  validity  of  the  latter  judgment  may 
be  called  in  question.  Any  payment  made  upon  a  void  judg- 
ment would  be  regarded  as  though  it  were  made  voluntarily, 
and  a  voluntary  payment  is  no  protection.^  This,  of  course, 
does  not  prevent  the  garnishee  from  obtaining  his  discharge  by 
payment  of  the  amount  of  his  indebtedness  into  Court,  where 

«  Ante,  Ch.  XXIX. 

'  Ante,  §  399  ;  Harman  v.  Btrrcbard,  8  Blackf.  418  ;  Richardson  v.  Hickman, 
22  Ind.  244  ;  Stimpson  v.  Maiden,  109  Mass.  313  ;  Robertson  v.  Roberta,  1  A.  K. 
Marsli,  247. 

8  Loring  v.  Folger,  7  Gray,  505. 

»  Laidlaw  v.  Morrow,  44  Mich.  547. 

1"  Holland  v.  Smith,  11  Mo.  App.  a 

1  Supra,  §  504. 

2  Wetter  v.  Rucker,  1  Brad.  &  B,  lau 


§    505  EFFECT   OF   GARNISHMENT  360 

such  payment  is  authorized  by  law.^  Even  the  question  of 
jurisdiction,  when  raised  by  tlie  garnishee  and  decided  against 
liiin,  lias  been  held  so  conclusive  upon  the  garnishee  that  he 
•will  be  protected  by  payment  under  execution,  issued  on  the 
judgment.^  So  payment  under  execution  Issued  on  a  judg- 
ment which  was  subsequently  revei'sed  for  error,  was  held  to 
protect  the  garnishee  against  a  subsequent  action.^  But  this 
is  when  the  error  upon  which  the  case  is  reversed  is  a  matter 
that  goes  merely  to  the  regularity  of  the  proceedings,  and  not 
where  It  is  reversed  for  want  of  jurisdiction,  which  was  not 
contested  by  the  garnishee  below.  Where  the  garnishee, 
knowing  that  funds  in  his  hands  were  exempt  in  favor  of  a 
judgment  debtor,  procured  garnishment  against  himself,  and 
failed  to  plead  the  exemption,  or  notify  the  judgment  debtor, 
it  was  held  that  the  judgment  thus  obtained  was  procured  in 
bad  faith,  and  would  be  no  defense  to  an  action  for  the  same 
funds  by  the  judgment  debtor.^  Mere  acquiescence  In  some 
method  of  arriving  at  the  facts  in  controversy,  other  than 
that  of  submitting  It  to  the  Court  or  jury,  will  not,  however, 
vitiate  the  judgment.  Where  the  issues  are  by  agreement  be- 
tween the  plaintiff  and  garnishee  referred,  and  the  judgment 
is  entered  on  the  finding  of  the  referee,  it  will  be  none  the 
less  binding  and  protecting  to  the  garnishee,  provided  he  acts 
in  the  matter  of  the  reference  In  good  faith.''  But  crood  faith 
is  essential.  If  It  appear  that  the  judgment  was  rendered  as 
the  result  of  collusion  between  the  plaintiff  and  the  garnishee, 
or  of  false  statements,  or  willful  neglect  on  the  part  of  the 
latter,  it  will  be  held  void,  when  satisfaction  thereof  is  urged 
in  defense  to  an  action  brought  by  the  defrauded  party. ^  But 
if  the  agreement  is  between  the  principal  parties,  or  between 

3  Rachereau  v.  Guidry,  24  La.  An.  291 ;  Ohio  etc.  E.  Co.  v.  Alrey,  43  Ind. 
180  ;  'Wilson  v.  Burney,  8  Neb.  39. 
*  Wyatt's  Adm'r  v.  Eambo,  20  Ala.  510.    See  Gunn  r.  Howell,  35  Ala.  144. 

5  Atcheson  v.  Smith,  3  B.  Men.  502  ;  Pierce  v.  Carleton,  12  111.  358  ;  Webster 
V.  Lowell,  2  Allen,  123  ;  Houston  v.  Walcott,  1  Iowa,  86  ;  Duncan  v.  Ware,  5 
Stew.  &  Fort.  ll'J  ;  24  Am.  Dec.  772  ;  Openlieim  v.  Pittsburgh  etc.  Pl.  Co.,  85 
Ind.  471. 

6  Smith  V.  Dickson,  58  Iowa,  444. 

"  Stille  V.  Layton,  2  Harr.  149.    But  see  contra,  Noble  v.  Thompson  Oil  Co., 
79  Pa.  St.  354  ;  21  Am.  Rep.  66  ;  Ante,  §  503  (note). 
8  Seward  v.  Heflin,  20  Vt.  144  ;  Coates  v.  Roberts,  4  Eawle,  100. 


361  PRIOR   TO   SUIT   BY   DEFENDANT.  §   506 

the  plaintiff  and  one  who  claims  the  debt  as  assignee,  it  is  a 
matter  with  which  the  garnishee  has  no  concern.  Hence, 
where  in  his  answer  the  garnishee  admitted  his  original  in- 
debtedness, setting  up  a  prior  assignment  to  a  designated 
third  party,  and  such  third  party  appeared  and  consented  to 
plaintiff's  judgment,  it  was  held  binding  on  the  garnishee.^  The 
principal  judgment  may  be  in  all  respects  valid,  and  the  judg- 
ment against  the  garnishee  still  be  void  for  want  of  jurisdiction 
obtained  by  service  of  process  in  garnishment,  in  which  event 
the  judgment  and  payment  will  be  no  protection,  as  he  will  oc- 
cupy substantially  the  same  position  as  though  the  judgment 
were  by  his  own  procurement.^*^  The  garnishee  is  under  obliga- 
tion to  take  advantage  of  any  failure  to  obtain  jurisdiction  of 
himself  by  service  of  process  ;  but  he  is  not  responsible  for  irreg- 
ularities in  the  judgment  which  only  affect  other  parties,  when 
such  irregularities  do  not  possess  the  gravity  of  jurisdictional 
errors. ^^  Hence,  he  may  pay  a  judgment  which  is  in  some 
respects  irregularly  obtained — particularly  if  the  irregulari- 
ties were  such  as  would  not  have  availed  him  as  a  defense  on 
the  hearing. ^^ 

§  506.  How  the  Judgment  should  be  Satisfied  in  order  to 
Constitute  a  Valid  Defense. — The  manner  in  which  the  judg- 
ment should  be  satisfied  is  by  payment  in  some  form  or  other. 
It  has  been  held  that  a  mere  purchase  of  the  judgment  by  the 
judgment  debtor,  although  as  between  himself  and  the  judg- 
ment creditor  it  was  thereby  extinguished,  was  not  such  a  pay- 
ment as  would  enable  the  garnishee,  when  subsequently  sued 
for  the  debt,  to  show  a  judgment  against  him  satisfied  for  the 
same  demand.^     The  technical  objections  that  may  be  raised 

9  Pollard  V.  Mobile  Sav.  Bank,  GO  Miss.  946. 

10  Deslia  v.  Baker,  3  Ark.  509  ;  Scbindler  v.  Smith,  18  La.  An.  476;  Southern 
Bank  v.  McDonald,  46  Miss.  31  ;  Northern  Central  R.  Co.  v.  Eider,  45  Md.  24; 
Ante,  §  330. 

11  Benson  v.  Halloway,  59  Miss.  358. 

1^  Tul)b  V.  Madding,  Minor,  129  ;  Morrison  v.  New  Bedford  Institution,  7 
Gray,  2()7  ;  Wheeler  v.  Aldrich,  13  Gray,  51  ;  Gildersleve  v.  Carroway,  19  Ala. 
24() ;  Parmer  v.  Ballard,  3  Stew.  326  ;  Duncan  v.  Ware,  5  Stew.  &  Port.  119  ; 
24  Am.  Dec.  772.  It  is  held  in  Missouri,  that  the  proceeding  against  the  gar- 
nishee abates  by  the  death  of  the  garnishee,  and  cannot  be  revived  against 
the  administrator,  though  the  latter  appear  and  stipulate  to  that  effect. — 
Brecht  V.  Corby,  7  Mo.  A  pp.  300. 
1  Brown  v.  Somerville,  8  Md.  444. 


§  506  EFFECT   OP   GARNISHMENT  362 

to  a  simulated  payment  must  depend  in  no  small  degree  upon 
the  circumstances  under  which  such  judgment  was  obtained, 
and  whether  it  was  from  the  rendition  thereof  so  binding  upon 
the  garnishee  that  he  could  no  longer  escape  the  liability 
thereby  imposed.  If  the  judgment  was  of  this  character,  the 
only  reason  why  it  should  not  be  taken  as  a  complete  defense 
to  the  subsequent  action,  whether  satisfied  or  not,  is,  that  It 
may  never  be  enforced  against  the  garnishee,  and  hence  may 
never  amount  to  an  extinguishment  of  the  demand  upon  which 
the  attachment  issued. ^  When  a  valid  judgment  has  been  sat- 
isfied, the  debt  is  completely  extinguished. 

When  the  plaintiff  obtains  judgment  against  the  garnishee  for- 
an  amount  sufficient  to  cover  defendant's  indebtedness,  and  ac- 
knowledges satisfaction  so  as  to  release  the  garnishee,  it  must 
have  the  effect  of  extinguishing  both  debts,  regardless  of  the 
actual  consideration  passing  between  the  garnishee  and  the 
plaintiff.  The  manner  in  which  payment  is  made  will  be  of 
more  importance  where  the  judgment  creditor  has  not  acknowl- 
edged satisfaction.  Where  the  payment  consists  of  nothing 
more  than  crediting  the  amount  on  garnishee's  books  to  plain- 
tiff in  the  attachment,  and  debiting  defendant  with  the  same 
amount,  it  of  course  will  amount  to  no  payment  whatever,  un- 
less so  accepted  by  the  judgment  creditor.^  But  in  an  early 
case  in  Connecticut,  a  mere  conditional  contract  to  pay  the 
judgment  was  held  sufficient,  it  being  so  accepted  by  the 
judgment  creditor.  The  circumstances  were  as  follows:  After 
judgment  was  rendered  against  the  garnishee,  the  a,ttachment 
defendant  instituted  a  suit  for  the  original  demand,  and  the 
garnishee  executed  and  delivered  a  written  contract,  that  for 
value  received  he  promised  to  pay  the  judgment  creditor  the 
amount  of  the  judgment,  with  interest,  whenever  the  suit 
brought  by  defendant  should  be  terminated  in  garnishee's  fa- 
vor, otherwise  the  "  note  "  to  be  returned  to  the  maker.*  This 
could  with  no  show  of  reason  be  held  a  payment  for  the  pur- 
pose of  giving  the  judgment  conclusive  effect,  unless  it  became 
conclusive  upon  the  judgment  creditor,  by  reason  of  his  acqui- 

2  5wpra,  §§500,501,  502. 

8  Wetter  v.  Rucker,  1  Brod.  &  B.49L 

<  Cutter  V.  Baker,  2  Day,  498. 


363  PRIOR  TO   SUIT  BY   DEFENDANT.  §   507 

escence,  so  as  to  extinguish  the  demand  upon  which  his  action 
was  brought,  pro  tanto.  If  it  amounts  to  this,  and  the  judg- 
ment itself  is  unimpeachable,  there  is  no  reason  why  the  satis- 
faction of  the  judgment  should  not  be  regarded  as  a  complete 
defense  to  the  action,  irrespective  of  the  amount  actually  paid 
by  the  garnishee,  or  whether  anything  were  actually  paid  or 
not.  It  should  be  sufficient  as  against  any  mere  technical  ob- 
jections on  the  part  of  garnishee's  original  creditor,  that  the 
judgment  set  up  as  a  bar  had  not  been  paid. 

§  507.  Payment  under  Execation. — In  some  of  the  States 
it  has  been  held  that  in  order  to  free  the  garnishee  from  the 
imputation  of  having  made  a  voluntary  payment  of  the  judg- 
ment relied  on  as  a  defense  to  a  subsequent  action,  it  must  be 
paid  under  execution.^  But  in  this  respect  the  statutes  are 
not  uniform,  and  as  a  consequence  it  is  not  always  held  that 
an  execution  is  necessary  to  justify  the  garnishee  in  paying 
the  judgment  against  him.^  Where,  however,  the  execution 
is  essential,  the  rule  is  quite  as  strict  that  it  must  be  a  valid  ex- 
ecution, as  that  the  judgment  itself  must  have  been  properly 
rendered.  It  is  held  in  Missouri,  that  where  the  garnishee 
pays  under  an  execution  in  favor  of  defendant,  that  might 
have  been  set  aside  for  irregularity,  it  will  be  no  protection 
from  the  judgment  against  him  as  garnishee.^  And  it  may  be 
inferred  that  the  rule  could  be  conversely  applied.  •  So,  where 
the  statute  prescribed  as  a  condition  precedent  to  the  issue  of 
execution  on  such  judgments,  that  the  plaintiff  should  execute 
a  bond  to  answer  to  defendant,  if  within  a  year  and  a  day  he 
should  appear  and  disprove  the  debt,  it  was  held  that  a  pay- 
ment under  the  judgment  without  such  bond,  and  before  the 
issue  of  an  execution,  would  be  regarded  as  a  voluntary  pay- 
ment by  the  garnishee,  and  no  defense  to  the  defendant's  sub- 
sequent action  on  the  original  demand.^ 

A  similar  statute  in  Mississippi  is  construed  as  intended  to 
secure  defendants  who  have  not  been  served  with  notice,  and 
have  not  appeared,  or  had  an  opportunity  to  defend  the  suit 

1  Wetter  v.  Rucker,  1  Brod.  &  B.  491 ;  Burnap  v.  Campbell,  6  Gray,  241. 

2Troyer  v.  Schweiser,  15  Minn.  241. 

*Home  Mutual  Ins.  Co.  v.  Gamble,  14  Mo.  407. 

<  Myers  v.  Urich,  1  Binney,  25.    See  Moyer  v.  Lobengeir,  4  Watts,  390. 


§  507  EFFECT  OF  GARNISHMENT  364 

Avithin  the  time  limited  ;  and  the  giving  of  the  bond  is  a  con- 
dition precedent  to  a  forced  sale  of  the  debtor's  property,  or  to 
the  issuance  of  execution  against  the  garnishee;  but  if  the 
garnishee  choose  to  pay  such  judgment  without  the  bond  be- 
ing given,  the  payment  is  provisionally  good,  subject  to  be  an- 
nulled in  case  the  debtor  shall  disprove  or  avoid  the  attach- 
ment debt.  Hence  the  defendant  may  bring  an  action  against 
his  debtor,  precisely  as  though  no  payment  had  been  made ; 
but  in  order  to  prevail  he  must  disprove  the  attachment  debt, 
as  would  be  required  of  him  had  he  come  into  Court  within 
the  year  and  a  day,  to  avoid  the  judgment  in  attachment.  It 
was  also  held  that  this  statute  was  for  the  benefit  of  defendant 
in  attachment,  and  not  the  assignee  of  a  debt.^ 

The  garnishee  can  only  defend  upon  the  ground  of  previous 
compulsory  payment ;  and  he  is  not  compelled  to  pay  until  all 
the  statutory  prerequisites  have  been  complied  with  by  the 
plaintiff.^  So,  where  the  statute  requires  the  surrender  of  as- 
signable promissory  notes  or  other  written  evidences  of  debt, 
as  a  condition  to  plaintiff's  right  to  recover  from  the  garnishee, 
or  in  default  of  such  surrender,  that  the  necessary  measures 
be  taken  to  completely  exonerate  the  garnishee  from  liability 
thereon,  it  was  held  where  the  payer  was  summoned  as  gar- 
nishee of  the  payee,  and  satisfied  the  judgment  without  de- 
manding a  compliance  with  these  conditions,  an  assignee  of 
the  payee  could  afterwards  recover  of  the  maker,  notwithstand- 
ing the  latter's  payment  of  the  judgment. '^  In  Iowa  a  notice 
to  show  cause  is  required  to  be  served  on  the  garnishee  before 
execution  can  issue,^  which  is  held  to  be  a  "  reasonable  "  notice, 
and  may  be  served  during  the  term  at  which  he  is  required  to 
appear.^  Until  such  notice,  and  the  order  for  execution  made 
in  pursuance  thereof,  the  payment  would  be  held  voluntary 
and  no  protection.^'' 

The  regularity  of  the  execution,  and  full  technical  compli- 
ance with  the  statutory  prerequisites,  will  not  in  every  instance 

5Murdock  v.  Daniel,  58  Miss.  411. 

SMcPhail  v.  Hyatt,  29  Iowa,  137  ;  Grissom  v.  Reynolds,  1  How.  (Miss.)  570. 

7  Yocum  V.  White,  3(3  Iowa,  288. 

8  Code,  §2985. 

9  Langfoid  v.  Ottumwa  "W.  P.  Co.,  53  Iowa,  415. 
WMcPbail  v.  Hyatt,  29  Iowa,  137. 


865  PRIOR   TO    SUIT   BY    DEFENDANT.  §    508 

justify  the  payment  of  the  judgment  against  the  garnii^liee. 
Thus,  where  prior  to  such  payment  the  debt  owing  by  the  gar- 
nishee to  tlie  defendant  had  been  regularly  set  apart  to  defen- 
dant as  a  portion  of  his  legal  exemption,  of  which  the  garnishee 
was  notified,  the  payment  did  not  discharge  the  garnishee's 
liability  to  the  defendant." 

§  508.  Judgment  in  favor  of  Garnishee. — Where  the  defen- 
dant is  not,  for  some  reason,  estopped  from  denying  the  cor- 
rectness of  the  judgment,  he  is  not  bound  by  it  when  it  is  in 
garnishee's  favor.  That  is,  the  finding  that  the  garnishee  is 
not  indebted  to  tile  defendant,  may  be  binding  upon  the  plain- 
tiff as  res  judicata,  while  it  does  not  affect  the  rights  of  the 
defendant  to  any  extent  whatever. ^  Nor  does  it  bind  other 
creditors,  to  prevent  thenifrom  maintaining  the  same  proceed- 
ing against  him  as  garnishee  of  the  same  defendant,  in  respect 
to  the  debt  which  according  to  the  judgment  of  the  Court  he 
did  not  owe.^  That  such  a  judgment  is  binding  upon  the  plain- 
tiff, even  when  obtained  by  falsely  denying  indebtedness,  or 
falsely  setting  up  counter  claims  and  cross-demands,  arises 
from  the  fact  that  this  identical  question  is  the  one  upon 
which  issue  was,  or  might  have  been  taken  when  the  false  an- 
swer was  filed.  If  the  finding  might  be  impeached  on  the 
ground  that  it  was  induced  by  falsehood,  the  same  ground 
might  be  alleged  for  overturning  any  judgment,  where  per- 
jury could  be  alleged  as  the  ground  of  attack.  The  truth  of 
the  answer  having  been  once  judicially  decided  in  the  affirma- 
tive, the  judgment  must  be  treated  as  conclusive  of  the  ques- 
tion between  the  same  parties,  or  the  final  determination  of  the 
Court  in  this  behalf  cannot  be  called  ^  judgment.^  It  is  quite 
a  different  matter  when  the  defendant  in  attachment  briniis 
his  action.  The  latter  was  not  necessarily  a  party  to  the  con- 
troversy between  the  plaintiff  and  the  garnishee,  and  hence 
the  judgment  discharging  the  party  summoned  as  his  debtor, 
upon  the  ground  that  he  was  not  indebted  as  claimed,  cannot 

11  Watkins  v.  Cason,  46  Ga.  444. 

1  Puffer  V.  Graves,  26  N.  H.  258. 

2  Breadiug  v.  Siegwortb,  29  Pa.  St.  396  :  Sprill  v.  Trader,  5  Jones,  39. 
8  Lyford  v.  Demervett,  32  N.  H.  234. 


§   508  GARNISHMENT  PRIOR  TO   SUIT.  366 

bind  the  defendant.*  Nor  Is  he  bound  by  such  judgment  as 
to  the  amount  of  such  indebtedness,  when,  as  determined  in 
the  garnishment  proceeding,  it  is  found  to  be  less  than  the 
amount  claimed  by  defendant.^ 

4  Baxter  v.  Vincent,  6  Vt.  614  ;  EoTaeson  v.  Carpenter,  7  Mart.  N.  S.  30. 
s  Brown  v.  Dudley,  33  N.  H.  511  ;  Barton  v.  Albright,  29  Ind.  489  ;  Cameron 
t).  Stollenwerk.  6  Ala.  704 ;  Tama  v.  Bullitt,  35  Pa.  St.  308. 


CHAPTER  XLIl. 
garnishee's  defenses  to  defendant's  cause  of  aotion. 

§  509.  General  remarks. 

§  510.  The  defense  of  payment. 

§  511.  Same  manner  and  time  of  payment. 

§  512.  Payment  under  compulsory  process. 

§  513.  Garnishee's  set-off,  or  cross  demand. 

§  514.  The  claim  to  be  set  off  considered  as  to  the  parties  interested. 

§  515.  Character  of  the  demand  set  off,  whether  legal  or  equitable. 

§  516.  Garnishee's  collateral  liability  as  a  defense. 

§  517.  When  the  set-off  should  be  acquired  to  become  available  in  garnish- 
ment. 

§  518.  "Whether  set-off  due,  or  to  become  due. 

§  519.  Defense  of  failure  of  consideration. 

§  520.  The  Statute  of  Limitations,  and  other  defenses. 

§  509.  General  Remarks.  —  In  another  place,  attention  is 
called  to  matters  that  concern  others  as  well  as  the  garnishee, 
and,  in  fact,  only  concern  him  at  all  indirectly,  which  he  must 
nevertheless  urge  as  a  reason  why  he  should  not  be  charged 
as  garnishee.^  In  the  same  place,  some  of  the  matters  herein 
considered  have  received  casual  attention.  It  is  not,  therefore, 
with  any  intention  of  repeating,  so  far  as  it  can  be  avoided, 
what  has  already  been  stated  in  reference  to  the  garnishee's  de- 
fenses, that  this  chapter  is  written. 

Nor  is  it  intended  here  to  go  over  again  that  branch  of  the 
subject  which  embraces  only  the  controversy  between  the  gar- 
nishee as  a  defendant,  and  the  principal  defendant  as  plaintiff, 
either  before  or  after  the  garnishment,  in  which  the  garnish- 
ment proceeding  and  the  judgment  therein  may  respectively 
become  matters  of  defense.^  What  is  herein  considered  is  that 
class  of  defenses  which  the  garnishee  makes  in  his  own  behalf 
to  the  demand  made  on  behalf  of  the  defendant,  and  such  as 
will  avail  him  in  the  attachment  proceeding.     They  are  pre- 

1  Ante,  Chap.  XXIX. 

2  Ante,  Chap.  XU. 


§   510  GARNISHEE'S   DEFENSES  368 

cisely  such  as  might  be  made  by  any  defendant  In  an  ordinary 
action,  excluding,  of  course,  such  as  arise  from  the  garnishment 
proceeding  itself.  They  are  generally  questions  of  fact, 
placed  in  issue  by  exceptions  to  the  garnishee's  answer,  and 
are  hence  only  in  controversy  between  the  plaintiff  and  the 
sarnishee.  But  this  Is  not  an  invariable  rule,  as  such  contest 
may  be  between  the  defendant  and  the  garnishee  f  or  it  may 
be  between  plaintiff  and  defendant,  seeking  to  establish  such 
indebtedness,  and  the  garnishee  resisting  the  same.  Nor  are 
they  always  contests  as  to  facts,  but  may  Involve  Issues  of  law 
as  well. 

§  510.  The  Defense  of  Payment. — It  Is  always  a  good  de- 
fense to  the  demand  made  on  behalf  of  the  defendant,  that  the 
debt  previously  existing  has  been  fully  paid  and  satisfied.^ 
But  when  such  payment  is  made  after  the  service  of  summons 
in  garnishment,  of  a  debt  existing  at  the  time,  It  will  be  no  de- 
fense to  the  proceeding  ;  otherwise  the  process  would  only  be 
effective  at  the  election  of  the  party  summoned.^  This  prin- 
ciple Is  so  far  flexible,  however,  that  It  Is  frequently  qualified 
by  considerations  that  do  not  operate  to  excuse  a  disregard 
of  original  process  of  other  kinds.  Thus,  It  Is  held,  where 
process  of  garnishment  has  been  technically  served,  within  the 
meaning  of  a  statute  that  substitutes  leaving  It  at  the  resi- 
dence of  a  party.  Instead  of  personal  delivery,  that  a  subse- 
quent payment  In  Ignorance  of  Its  being  so  left  would  protect 
the  garnishee  against  the  claim  of  the  plaintiff  in  attachment.^ 
Such  payment  being  made  In  Ignorance  of  service  and  In  good 
faith  will  discharge  the  garnishee.*  So  where  the  garnishee 
is  jointly,  or  jointly  and  severally,  liable  with  another,  and  is 
garnished  In  respect  to  such  Indebtedness,  and  It  Is  subsequent- 

8  Graves  v.  Cooper,  8  Ala.  811. 

iCocbran  v.  Fitch,  1  Sanclf.  Ch.  148  ;  New  Orleans  etc.  R.  Co.  v.  Long,  5  Ala. 
498  ;  Robinson  v.  Hall,  3  Mete.  (Mass.)  301 ;  Tliorne  v.  Matthews,  5  Cash.  544  ; 
Spooner  v.  Rowland,  4  Allen,  485. 

2  Johnson  v.  Carry,  2  Cte.1. 33  ;  Westu.  Piatt,  116  Mass.  308  ;  Locke  v.  Tippets, 
7  Mass.  149  ;  PuUiam  v.  Aler,  15  Gratt.  54  ;  Johann  v.  Refener,  3  Wis.  195  ; 
Parker  v.  Parker,  2  Hill  Ch'y,  35  ;  Hughes  v.  Monty,  24  Iowa,  499 ;  Toledo  etc. 
E.  Co.  V.  McNulty,  34  Ind.  531 ;  Paul  v.  Johnson,  9  Phila.  32. 

8 Robinson  v.  Hall,  3  Met.  (Mass.)  301. 

4  Landry  v.  Chayret,  58  N.  H.  89. 


369  TO  defendant's  cause  of  action.  §  511: 

ly  paid  by  the  co-obligor  who  was  not  served,  it  is  equally  ef- 
fective as  a  jiayment  of  the  debt,  and  neither  of  such  debtors 
can  be  charged  as  garnishee.^  But  if  payment  is  made  by  an 
agent  who  is  aware  of  the  service  of  summons  of  which  hia 
principal  is  ignorant,  the  legal  identity  of  principal  and  agent 
will  destroy  the  effect  of  such  payment  as  ground  for  discharg- 
ing the  garnishee.^  It  is  held  otherwise,  however,  where  the 
agent  makes  the  payment  of  the  principal's  debt  in  ignorance 
of  the  fact  that  the  principal  has  been  summoned  as  garnishee- 
of  his  creditor^  The  payment  need  not  be  made  in  cash,  as  it 
will  suffice  if  any  medium  is  employed  that  satisfies  the  de- 
mand, without  leaving  the  garnishee  still  indebted  to  the  de- 
fendant. Thus,  where  payment  was  made  by  a  check  on  a 
bank,  it  was  sufficient,  though  at  the  time  of  service  of  gar- 
nishment it  had  not  been  presented  for  payment  at  the  bank 
upon  which  it  was  drawn.^  But  where  a  check  was  drawn  in 
payment,  in  anticipation  of  garnishment,  and  instead  of  being 
turned  over  to  the  payee,  was,  by  agreement  between  the  cred- 
itor and  the  garnishee,  deposited  with  a  clerk  in  the  employ  of 
the  latter,  where  it  might  be  revoked  at  pleasure,  this  was 
very  properly  held  to  be  no  actual  payment,  and  consequently 
the  garnishee  would  be  charged.''  That  it  was  not  the  failure 
to  deliver  the  check  in  this  case  which  defeated  its  purpose,  is 
apparent  from  the  ruling  of  the  same  Court  in  a  subsequent 
case,  where  the  check  given  by  the  garnishee  was  placed  in 
the  hands  of  a  third  person,  who  was  to  apply  certain  desig- 
nated portions  thereof  to  the  payment  of  other  debts  of  the 
payee.  The  third  party  was  in  possession  of  the  check  when, 
the  garnishee  was  served,  but  as  it  had  passed  irrevocably 
from  the  hands  of  the  drawer,  it  was  decided  to  be  a  payment. ^^' 

§  511.  Same — Manner  and  Time  of  Payment. — It  is  not  suf- 
ficient to  constitute  a  payment,  that  the  payer  has  parted  with, 
the  amount  of  his  indebtedness,  unless  it  has  been  received  by 

6 Nash  V.  Brophey,  13  Met.  (Mass.)  476  ;  Jewett  v.  Bacon,  6  Mass.  60. 
sConley  v.  Chilcote,  25  Ohio  St.  320. 
■^  Spooner  v.  Rowland,  4  Allen,  485. 

8  Getchell  v.  Chase,  124  Mass.  366  ;  Barnard  v.  Graves,  16  Pick.  41; 

9  Dannie  v.  Hart,  2  Pick.  204. 

1"  Barnard  v.  Graves,  16  Pick.  41. 
II.  Attach.— 24. . 


§    511  garnishee's   DEFENSEa  370 

Ills  creditor.  Neither  is  it  sufficient  that  the  creditor  has  re- 
ceived the  full  benefit  of  such  payment,  in  every  case,  though 
in  general  these  two  circumstances  concurring  will  amount  to 
a  complete  extinguishment  of  the  debt,  and  prevent  the  party 
paying  from  being  charged  as  garnishee  of  the  party  benefited 
by  such  payment.  Payment  to  an  agent,  or  depositing  to  the 
credit  of  the  creditor  in  bank,  pursuant  to  former  instructions, 
would  probably,  in  every  case,  be  held  a  complete  satisfaction. 
So  payment  by  direction  of  the  creditor,  or  with  his  consent 
to  a  creditor  of  such  creditor,  would  be  equally  effectual ;  but 
not  so  when  it  was  so  paid  without  the  knowledge  or  consent 
of  the  one  to  whom  the  money  was  directly  owing,  and  the 
latter  did  not  ratify  the  payment  made  for  his  benefit,  until 
after  the  one  making  such  payment  had  been  summoned  as 
garnishee.^  The  reason  of  this  is  obvious.  Up  to  the  time 
of  the  attachment,  the  creditor  to  whom  the  money  was  owing 
alone  had  tiie  power  of  disposing  of  it ;  and  hence  the  act  of 
the  debtor  was  unauthorized,  and  would  not  have  bound  the 
creditor  had  he  seen  fit  to  object.  After  the  attachment,  this 
jus  disponendi  was  gone  from  the  defendant,  and  consequently 
his  ratification  was  as  void  as  the  original  payment. 

The  time  when  payment  is  made  may  become  a  close  ques- 
tion, in  order  to  determine  whether  it  was  prior  or  subsequent 
to  the  service  of  summons  in  garnishment.  For  this  purpose, 
the  answer  setting  up  payment  should  be  explicit  as  to  the 
day,  and  when  the  debt  was  paid  on  the  same  day  the  sum- 
mons was  served,  it  should  appear  that  it  was  at  an  earlier 
hour  in  the  day ;  otherwise,  the  Court  may  give  the  benefit  of 
the  doubt  as  to  priority  to  the  service,  in  which  event  the  gar- 
nishee will  be  charged.^  The  garnishee  unquestionably  has 
it  in  his  power,  under  ordinary  circumstances,  to  remove  all 
doubt  upon  this  matter,  and  if  he  fails  to  do  so,  must  bear  the 
consequences  of  his  negligence.  But  circumstances  might 
well  arise  which  would  call  for  a  less  rigorous  construction 
of  the  law  in  this  resj^ect. 

A  reasonable  exception  to  the  rule  that  payment  must  be 
made  before  service  of  summons  on  the  garnishee,  is  where  the 

1  Sturtevantt).  Robinson,  18  Pick.  175. 

2  Harris  v.  Somerset  etc.  R.  Co.,  47  Me.  298. 


371  TO  defendant's  cause  op  action.  §  512 

obligation  to  pay  has  become  fixed  by  a  judgment  in  favor  of 
some  one  to  whom  the  garnishee  is  collaterally  liable,  prior  to 
service,  though  such  judgment  is  not  paid  until  after  service.^ 

§  512.  Payment  under  Compulsoiy  Process. — We  have  in 
former  chapters  seen  examples  where,  notwithstanding  the 
fact  that  the  payment  set  up  by  the  garnishee  was  made  under 
execution,  it  was  held  no  defense.^  The  circumstances  under 
which  this  occurs  are,  for  the  most  part,  such  as  to  give  a 
show  of  justification  for  such  rulings,  on  the  ground  of  gar- 
nishee's laches  in  suffering  the  first  judgment  to  go  against 
him.2  But  there  are  cases  where  the  inability  of  the  Court 
to  afford  adequate  protection  to  the  intermediate  party,  is  ow- 
ing to  defects  in  the  law  which  makes  the  garnishee  responsi- 
ble for  the  errors  of  the  Court,  after  placing  him  in  the  thank- 
less position  of  holder  of  the  bone  of  contention.^  This,  how- 
ever, is  contrary  to  the  general  purposes  of  the  statute.  The 
intention  is  that  where  the  garnishee  has  once  fairly  submitted 
the  question  of  his  indebtedness  to  adjudication,  and  has  paid 
the  judgment  rendered  against  him,  he  cannot  be  again  re- 
quired to  pay  the  same  demand.  If  the  garnishee  pays  a  judg- 
ment against  him  for  the  debt,  after  judgment  discharging  him 
from  liability  as  garnishee,  he  cannot  be  held  as  garnishee 
though  the  judgment  discharging  him  is  subsequently  re- 
versed, there  being  no  supersedeas.*  And  a  payment  under 
execution  issued  on  a  judgment  obtained  after  the  garnish- 
ment was  served,  will  discharge  the  garnishee,  where  the 
judgment  is  upon  a  garnishment  issued  and  served  prior  to 
the  one  in  which  such  payment  Is  urged  as  a  defense.^  The 
principle  upon  which  the  garnishee  is  discharged  is  cor- 
rectly deduced  from  the  priority  of  right  acquired  by  service 
of  the  summons.  But  this  priority  of  right  does  not  always 
obtain,  where  it  Is  opposed  by  a  prior  judgment  rendered  on 
subsequent  service.     Thus,  in  Greorgia,  it  was  held  that  the 

8  Infra,  §  516. 

1  Ante,  Oh.  XXIX. 

2  Watkins  v.  Cason,  46  Ga.  444. 

3  Ante,  §  400  ;  Home  Mutual  Ins.  Co.  v.  Gamble,  U  Mo.  407  ;  Mobile  etc.  B. 
Co.  V.  Whitney,  39  Ala.  468. 

*  Webb  V.  Miller,  24  Miss.  C38. 

5  2\ew  Orleans  etc.  B,  Co.  v.  Long^0LAla.-498. 


I 


§  512  garnishee's  defenses  372 

garnishees  were  protected  by  payment  of  a  senior  judgment, 
though  they  were  first  summoned  in  the  suit  in  which  the 
judgment  was  asked  against  them  from  which  they  were  held 
exempt.  It  was  also  held  that  an  order  served  on  the  gar- 
nishees 2)rior  to  service  in  the  suit  upon  which  the  senior  judo-- 
ment  was  rendered,  requiring  the  garnishees  to  pay  the  amount 
of  their  debt  to  plaintiff  in  the  prior  garnishment,  would  not 
entitle  such  plaintiff  to  judgment  against  the  garnishee,  as  his 
right  to  judgment  must  rest  upon  the  indebtedness  of  defen- 
dant to  garnishee.^  Tliis  ruling  indicates  that  the  only  way  in 
which  the  priority  of  right  gained  by  service  of  summons  in 
garnishment  can  be  preserved  against  a  judgment  obtained 
on  subsequent  service,  is  by  taking  measures  to  prevent  such 
judgments  from  being  rendered.  At  all  events,  the  garnishee 
is  not  left  to  determine  the  value  of  the  conflicting  rights,  at 
his  own  risk.  The  pi'ocess  relied  on  as  a  justification  of  pay- 
ment must,  of  course,  issue  from  a  Court  of  competent  juris- 
diction. And  a  payment  made  under  execution  which  is  is- 
sued on  a  judgment  obtained  by  false  dlsclosux-es,  or  collusion 
between  the  garnishee  and  the  attaching  creditor,  or  the  gar- 
nishee and  the  defendant,  to  defraud  the  real  creditors  of  the 
garnishee,  will  be  no  protection  to  the  latter  as  against  those 
to  whom  he  is  actually  indebted.'  It  is  also  held,  with  seem- 
ingly unnecessary  strictness,  that  the  payment  set  up,  whether 
voluntary  or  compulsory,  to  be  effective  as  a  defense,  must 
have  been  made  prior  to  service.  While  this  may  be  general- 
ly true,  it  was  harshly  applied  where,  prior  to  service,  the  gar- 
nishee became  liable  on  a  judgment  rendered  against  him  as 
surety  for  defendant ;  and  defendant  being  insolvent,  he  paid 
the  judgment  after  service,  which  amounted  to  more  than  the 
debt  in  respect  to  which  he  was  garnished.  He  was,  never- 
theless held  liable  as  garnishee,  upon  the  theory  that  the  ser- 
vice of  garnishment  was  a  transfer  to  plaintiff,  by  operation  of 
law,  of  the  garnishee's  indebtedness  to  defendant,  and  the 
plaintiff's  right  cannot  be  defeated  by  garnishee's  subsequent 
payments,  whether  made  voluntarily,  or   by  legal  coercion.' 

6  Hall  V.  Daniel,  62  Ga.  620. 

T  First  National  Bank  v.  Miller,  45  Mich.  413. 

8  Watkins  v.  Field,  C.  Ark.  391. 


373  TO  defendant's  cause  of  action.  §  513 

The  only  case  where  subsequent  compulsory  payment,  of  a 
preexistent  liability  would  be. generally  held  no  protection  to 
the  garnishee,  would  be  where  he  was  negligent  in  setting  up 
his  liability  when  summoned  in  the  attachment  suit.  But 
where  the  claim  had  culminated  in  a  judgment  prior  to  the 
service,  there  is  no  good  reason  for  holding  that  the  garnishee 
would  not  be  discharged  by  a  subsequent  payment.  It  might 
fall  under  a  different  rule,  if  the  judgment  were  in  defendant's 
favor.^  But  when  the  judgment  debt,  that  fixes  garnishee's 
liability  to  defendant,  is  in  the  hands  of  a  third  party,  it  can- 
not be  affected  by  the  judgment  in  attachment,  and  the  gar- 
nishee is  left  in  a  worse  positix)n  than  that  occupied  by  him 
towards  his  original  creditor.  ^'^ 

§  513.  Grarnisliee's  Set-off  or  Cross-Demand. — "When  the  gar- 
nishee has  a  counter  claim  against  the  defendant,  his  creditor, 
he  may  set  it  up  against  his  liability,  in  all  cases  where  it  could 
have  been  rendei'ed  available  as  a  defense,  in  a  direct  action  by 
the  creditor  who  is  defendant  in  the  attachment  suit.^  But 
this  rule  does  not  aj^ply  to  garnishees  summoned  on  account 
of  their  possession  or  control  of  specific  chattels  which  it  is 
sought  thus  to  attach,  unless  the  property  held  by  them  is  de- 
posited for  the  pur])ose  of  securing  t!ie  debt  or  damages  they 
seek  to  set  off  or  recoup  against  their  liability  as  garnishees.^ 
Where  the  technical  desi<jnation  of  the  claim  of  the  irarnishee 
is  that  of  "  set-off,"  and  his  right  to  deduct  the  same  from  the 
amount  of  defendant's  claim  against  him  is  confined  strictly  to 
such  cross-demands  as  may  be  so  classed,  the  I'ight  of  action 
must   be   one  arising  ex  contractu.,  and  hence  would  not  em- 

^  Ante,  §  495  ct  seq. 

10  See  Infra,  §  516. 

1  Rankin  v.  Simouds,  27  111.  352;  Sampson  v.  Hyde,  IG  IST.  H.  492;  Picquet  v. 
Swan,  4  Mason,  443 ;  Beach  v.  Viles,  2  Pet.  675;  Arledge  v.  White,  1  Head. 
241 ;  Ashby  v.  Watson,  9  Mo.  236  ;  Fay  v.  Reager,  2  Sneed,  200  ;  Mattingly  v. 
Boyd,  20  How.  128  ;  Johnson  v.  Hoyle,  3  Head.  56  ;  Brown  v.  Warren,  43  N. 
H.  430  ;  Fain  v.  Jones,  3  Head.  308  ;  Wljeeler  v.  Emerson,  45  N.  H.  526  ;  Mayor 
etc.  V.  Potomac  Ins.  Co.,  2  Baxter,  296;  Nesbitt  v.  Campbell,  5  Neb.  429; 
Strong's  Ex'r  v.  Bass,  35  Pa.  St.  333  ;  O'Brien  v.  Collins,  124  Mass.  98  ;  Nutter 
V.  Farmingtonetc.  E.  Co.,  132  Mass.  427;  McCoy  ?'.  W^illiams,  6111.584  ;  Brown 
i".  Brown,  55  N.  H.  74  ;  Mowry  v.  Davenport,  6  Lea,  80. 

2 McDowell  V.  Crook,  10  La.  An.  31;  Michigan  etc.  B.  Co.  v.  Chicago  etc.  E. 
Co.  1  111.  App.  399  ;  Allen  v.  Hall,  5  Met.  (Mass.)  263. 


§  513  garnishee's  defenses  374 

brace  the  right  to  recover  back  under  a  statute,  money  paid 
for  intoxicating  liquors,^  nor  money  due  to  a  town  summoned 
as  garnishee  for  taxes.*  The  right  of  setting  off  the  claim 
for  money  paid  for  intoxicating  liquors  is  denied,  upon  the 
ground  that  it  is  a  statutory  remedy,  unknown  to  the  common 
law,  and  oould  only  be  enforced  in  the  mode  prescribed.  The 
reason  that  the  town's  claim  for  taxes  due  from  the  defendant 
was  not  entertained  as  a  set-off  was,  that  a  tax  is  not  a  debt 
arising  on  contract.^  But  for  the  purpose  of  determining 
whether  the  payment  of  taxes  is  embraced  within  the  provis- 
ions of  the  legal  tender  act  of  Congress,  which  provides  that 
the  notes  issued  by  the  general  government  shall  be  "  a  legal 
tender  in  payment  of  all  debts  public  and  private,"  the  Su- 
preme Court  of  California  holds  that  a  tax  due  and  unpaid 
does  not  create  a  deht.^  There  are  other  reasons  why  a  tax 
cannot  be  relied  on  as  a  set-off  to  a  debt  in  respect  to  which 
the  town  is  summoned  as  garnishee,  than  that  it  does  not  arise 
in  contract.  It  is  also  held  that  where  insurers  were  sum- 
moned as  garnishees  of  the  assured,  they  could  not  set  off  pre- 
miums due  on  another  policy  previously  assigned  with  their 
consent;  but  this  is  on  the  ground  of  the  assignment.''^  And 
it  is  also  laid  down,  that  unless  the  demands  are  between  the 
same  parties,  with  mutual  subsisting  rights,  they  cannot  be  set 
off  in  garnishment,  and  that  consequently  the  garnishee  cannot 
set  off  against  his  indebtedness  the  liability  of  suretyship  as- 
sumed by  him  for  defendant,  befofe  service  of  summons,  and 
paid  after  service,  though  it  also  appear  that  his  co-sureties 
and  defendant  are  insolvent.^  But  the  better  opinion  seems  to 
be  that  any  claim  or  demand  he  may  have  against  the  defen- 
dant, which  he  might  interpose  in  a  direct  action  for  his  in- 
debtedness, may  be  rendered  available  in  garnishment,  and  this 
will  necessarily  include  claims  for  damages,  or  penalties  for 
breach  of  contract  which  he  might  recoup  against  his  credi- 

8  Thayer  v.  Partridge,  47  Vt.  423. 

4  Johnson  v.  Howard,  41  Vt.  122.    See  also  Shaw  v.  Peckett,  26  Vt.  482. 

5  See  Hibbard  v.  Clark,  56  N.  H.  155  ;  22  Am.  Eep.  432  ;  Mayhew  v.  Davis,  1 
McLean,  213  ;  Camden  v.  Allen,  26  N.  J.  L.  398. 

6  Perry  v.  Washburn,  20  Cal.  318. 
''  Cleveland  v.  Clap,  5  Mass.  201. 

8  Watkins  v.  Field,  6  Ark.  391 ;  Field  v.  Watkins,  5  Ark.  672^ 


375  TO  defendant's  cause  of  action.  §  514 

tor.^  When  the  damages  arise  out  of  the  contract  which  is  the 
foundation  of  the  debt  in  respect  to  which  the  garnishee  Is  sum- 
moned, there  seems  no  reason  to  doubt  that  it  may  be  deduct- 
ed from  the  debt  in  the  garnishment  proceeding,  as  well  as  in 
the  direct  action  brought  by  the  creditor.^*^  When  the  set-off 
does  not  cover  the  entire  debt,  the  garnishee  may  be  held 
for  the  surplus  in  his  hands. ^^ 

§  514.  The  Claim  to  be  Set  Off,  considered  as  to  the  Par- 
ties Interested. — When  the  garnishee's  answer  shows  him  to 
be  indebted  to  the  principal  defendant,  or  such  indebtedness 
appears  in  the  contest  between  plaintiff  and  the  garnishee  ou 
the  traverse  of  the  answer,  any  cross  demand  which  the  gar- 
nishee may  set  up  must  be  one  in  his  own  favor.  And  it  is 
not  sufficient  that  this  may  be  nominally  true,  but  the  demand 
in  favor  of  the  garnishee  must  be  held  by  him  in  substantially 
the  same  capacity  as  that  in  which  he  owes  the  defendant. 
Thus,  he  cannot  offset  a  claim  which  he  holds  as  executor  or 
administrator  against  his  personal  indebtedness  to  the  defen- 
dant.^ So  it  was  held  not  enough  to  entitle  an  executor,  sum- 
moned as  garnishee  of  a  leo-atee  named  in  the  will  of  the  tes- 
tator,  to  be  discharged,  that  he  was  the  holder  of  a  promissory 
note  payable  to  himself,  for  a  greater  amount  than  the  legacy 
which  he  was  called  upon  to  pay  as  executor  ;  nor  was  he  aid- 
ed by  the  circumstance  that  the  testator  was  surety  on  the 
note,  nothing  having  been  paid  thereon,  and  the  note  being 
barred  by  the  statute  of  limitations  prior  to  the  testator's 
death.2  The  bar  of  the  statute  only  figures  in  this  ruling  as  a 
necessary  element  by  reason  of  the  suretyship  of  the  testator, 
as  otherwise  the  executor  might  have  paid  the  note,  and  held 
it  against  the  principal.  Omitting  both  the  suretyship  of  the 
testator,  and  the  statute  of  limitations,  the  case  would  proba- 
bly have  been  decided  in  the  same  way  on  principle.    The  case 

9  Powell  V.  Samtnons,  31  Ala.  552 ;  Thompson  v.  Allison,  28  La.  An.  733  ; 
Faxon  v.  Mansfield,  2  Mass.  147;  Doyle  v.  Gray,  110  Mass.  206. 

10  Cotta  V.  Misliow,  62  Me.  124. 
"Barker  v.  Osborne,  71  Me.  69. 

1  Thomas  v.  Hopper,  5  Ala.  442.  See  Wells  v.  Mace,  17  Vt.  503;  or  vice  versa, 
■Wadleigh  v.  Jordan,  74  Me.  483. 

2  Wadleigh  v.  Jordan,  74  Me.  483. 


§    514  GARNISHEE'S    DEFENSES  376 

is  different  whh  tlic  executor  from  Avhat  it  woukl  be  if,  in  pay- 
ing tlie  legacy  to  defendant's  creditors,  he  were  parting  with 
liis  own  money.  And  so  it  was  held  in  Louisiana,  where  sev- 
eral parties  wlio  were  summoned  as  garnishees  were  indebted 
to  the  defendant  as  partners,  that  his  indebtedness  to  them 
severally,  as  legatees,  could  not  beset  off  against  their  joint  in- 
debtednciss.'^  But  upon  this  feature  of  the  law  of  garnishment, 
the  rulin£Ts  in  Massachusetts  are  much  more  liberal  to  the  jrar- 
nishee.  It  is  there  held,  that  where  one  of  two  or  more  joint 
debtors  is  summoned  as  garnishee,  he  may  set  off  the  demands 
due  to  himself  and  his  co-debtors.^  So  where,  prior  to  service 
of  summons  in  garnishment,  the  garnishee  held  a  non-negotia- 
ble chose  in  action  against  the  principal  defendant,  which  he 
assigned  to  a  third  person,  from  whom  he  took  an  instrument 
whereby  the  latter  agreed  to  hold  the  claim  for  the  joint  ben- 
efit of  the  two  parties  ;  not  to  dispose  of  it  without  the  consent 
of  the  assignor,  and  that  all  the  benefits  at  any  time  derived 
therefrom  should  enure  to  the  joint  benefit  of  assignor  and 
assiirnee,  the  Court  decided  that  when  the  former  was  sum- 
moned  as  garnishee  in  respect  to  his  individual  indebtedness, 
lie  was  entitled  to  set  off  this  claim. ^  The  rule  in  that 
State,  as  expressed  in  the  later  decisions  of  its  Court  of  final 
resort,  is,  that  the  garnisiiee  may  set  off  in  such  cases  whatev- 
er he  might  retain  or  set  off  in  any  lawful  mode  of  adjustment 
between  him^self  and  defendant,  without  regard  to  technical 
forms. *^  So  also,  in  New  Hampshire,  garnishees  summoned  in 
respect  to  their  joint  indebtedness  to  defendant,  may  not  only 
set  off  their  joint  debts  against  him,  but  such  claims  as  they 
hold  a<i;ainst  him  severallv  as  well.*^ 

There  is  a  case  reported  in  Pennsylvania  that  seems  to  be  to 
some  extent  a  negation  of  the  general  principle  that  a  garnishee 

3  Blanchard  v.  Cole,  8  La.  IfiO.  See  Norcross  v.  Benton,  38  Pa.  St.  217  ;  Gray 
V.  Badgett,  5  Ark.  16. 

4  Hathaway  v.  Russell,  16  Mass.  473.  See  also  Manufacturers'  Bank  v.  Os- 
good, 12  Me.  117. 

s Nutter  V.  Frumingham  etc.  R.  Co.,  132  Mass.  427  ;  Nickerson  v.  Cbase,  122 
Mass.  296. 

sNutter  v.  Framingliam  etc.  R.  Co.,  132  Mass.  427,  430  ;  Smith  v.  Stearns,  19 
Pick.  20  ;  Hathaway  v.  Russell,  16  Mass.  473  ;  Green  v.  Nelson.  12  Met.  (Mass.) 
567. 

"!  Brown  v.  Warren,  43  N.  H.  430. 


377  TO  defendant's  cause  of  action.  §  515 

may  set  off  any  claim  that  he  might  have  so  used  In  an  action 
by  liis  iniinediate  creditor.  The  distinction  is  made  on  the 
ground  of  the  rchitions  between  the  garnishee  and  the  defen- 
dant, and  has  the  sembhmce  of  one  of  those  subtle  exceptions 
which  Courts  on  occasion  make  to  established  principles,  in  or- 
der to  overcome  some  real  or  imaginary  evil  arising  in  the  par- 
ticular case.  The  garnishee  was  a  banker,  and  liable  to  de- 
fendant as  depositary.  The  defendant  was  a  corporation  of 
which  the  garnishee  was  president.  As  banker,  the  garnishee 
held  a  large  amount  of  the  defendant's  overdue  bonds,  which 
he  endeavored  to  set  off  against  his  liability  as  depositary  ;  but 
upon  the  ground  that  it  would  be  "  a  breach  of  confidence," 
the  rijjht  was  denied  to  him,  and  he  was  char^red  as  irarnishee.^ 
In  a  general  way  of  looking  at  the  question,  it  appears  fair 
enough  that  the  president  of  a  debtor  corporation  should  suf- 
fer in  preference  to  other  creditors.  But  had  the  banker  been 
sued  by  the  corporation,  could  he  not  have  set  off  the  amount 
due  on  the  bonds  ? 

§  515.  Character  of  the  Demand  Set  Off,  whether  Legal  or 
Equitable. — It  is  one  of  the  doctrines  quite  generally  accepted, 
that  only  legal  debts  may  be  garnished.^  This,  however,  is 
only  because  the  statute  makes  no  special  provision  for  the  at- 
tachment of  equitable  demands  by  this  process,  and  the 
Courts  are  unwilling  to  extend  the  operation  of  a  statutory 
proceeding  beyond  its  prescribed  limits.  There  Is  nothing  in 
the  proceeding  that  renders  it  necessarily  Inaj)proprIate  as  a 
means  of  reaching  sums  equitably  due  a  debtor,  provided  the 
statute  is  framed  for  that  purpose,  as  It  Is  In  some  of  the 
States.  Under  this  rule,  some  of  the  Courts  have  deemed  It 
incumbent  upon  them  to  apply  the  same  strict  rules  of  con- 
struction to  the  demands  which  the  garnishee  seeks  to  set  oif, 
as  are  applied  to  the  demands  for  which  garnishment  Is  sued 
out.  It  is  accordingly  held  that  only  such  debts  as  are  legally 
due  the  garnishee  may  be  set  off  against  the  debt  in  respect 
to  which  he  Is  garnished;  and  in  pursuance  of  this  doctrine, 
the  rulings  are  carried  so  far  as  to  work  hardship  on  the  gar- 

8  Fox  V.  Eeed,  3  Grant,  81. 
1  Ante,  §  448. 


§  516  garnishee's  defenses  378 

nisliee.^  Thus,  when  garnished,  the  debtor  of  the  attachment 
defendant  hekl  his  creditor's  note,  whicli  had  been  transferred 
to  the  garnishee  without  indorsement  from  the  original  payee. 
It  was  not  questioned  but  that  the  beneficial  title  to  the  note 
was  in  the  garnishee  at  the  time  he  was  summoned.  Never- 
theless, it  was  held  that  as  the  garnishee  could  not  have  main- 
tained an  independent  action  at  law  against  the  maker,  he 
could  not  set  off  the  same  against  the  legal  debt  in  respect  to 
which  he  was  garnished.^  Where  jurisdiction  in  equity  and 
at  law  is  exercised  exclusively  in  separate  Courts,  there  is  am- 
ple technical  ground  for  confining  the  garnishee  to  such  de- 
fenses as  come  within  the  powers  of  the  Court  where  the  pro- 
ceeding is  pending.  An  extension  of  the  rule  upon  strict 
technical  principles  would  also  exclude  from  the  defenses  of 
the  garnishee,  by  way  of  set-off,  any  choses  in  action  he  might 
hold  against  the  defendant,  excepting  negotiable  instruments 
Mliioli  he  received  by  assignment,  upon  the  ground  that  his 
interest  was  only  equitable,  and  an  action  could  not  be  main- 
tained on  the  chose  in  action  in  his  own  name.  But  aside 
from  the  chanires  in  these  doctrines  whicli  leopislation  has  ef- 
fected  in  recent  years,  it  seems  that  more  liberal  rules  of  con- 
struction should  be  applied  in  preserving  the  rights  of  the 
"  disinterested  stakeholder,*"  than  those  which  are  available 
for  one  pursuing  a  strictly  statutory  remedy.  The  Court  de- 
prives the  plaintiff  of  no  right,  when  it  refuses  to  enlarge  the 
scope  of  the  statute  so  as  to  embrace  equitable  demands  in  the 
class  of  attachable  credits.  It  does  deprive  the  garnishee  of  a 
substantial  right,  and  that  when  he  is  dragged  into  a  suit 
between  other  parties,  when  he  is  deprived  of  the  benefit  of  a 
cross-demand  against  his  creditor,  merely  for  the  reason  that 
his  claim  is  equitable  rather  than  legal.'* 

§  516.  Garnisliee's  Collateral  Liability  as  a  Defense. — When 
the  garnishee  has  nothing  to  oft'  set  against  the  debt  due  from 
him  to  the  defendant,  except  a  liability  previously  assumed  in 
behalf  of  his  creditors,  it  is  not  uniformly  held  that  this  will 

2  Lof tin  V.  Shackleford,  17  Ala.  455  ;  Weller  r.  "Weller,  18  Yt.  55. 

8  Loftiu  V.  Shackleford,  17  Ala.  455.    See  Self  v.  Kirkland,  24  Ala.  275. 

*  ^Yilliams  v.  Gayle,  7  Gratt.  152  ;  Glassel  t".  Thomas,  3  Leigh,  113. 


879  TO  dei^ndant's  cause  of  action.  §  516 

avail  liim  as  a  defense.  Nevertheleless,  it  is  a  sound  principle, 
that  Avhere  a  person  is  indebted  to  another  in  a  given  sum,  and 
becomes  surety  for  his  creditor  to  a  third  person  for  an  equal 
amount,  he  may  withhold  payment  of  his  own  indebtedness, 
until  it  is  determined  whether  or  not  he  shall  be  required  to 
pay  the  debt  for  which  he  is  surety.^  It  would  not  require  a 
very  positive  and  direct  showing  to  make  it  appear  that  the 
collateral  obligation  was  assumed  with  his  own  debt  in  view 
as  indemnity.  If  he  might  defend  the  action  brought  against 
him  by  his  creditor,  upon  the  ground  that  he  claimed  the  debt 
as  indemnity  for  tlie  liability  as  surety,  he  should  be  permitted 
to  urge  the  same  defense  when  summoned  as  garnishee  of  his 
creditor.^  The  very  extreme  of  opposition  to  this  doctrine  is 
found  in  "Watkins  v.  Field.^  It  is  there  laid  down  that  the  ser- 
vice of  summons  on  the  garnishee  is  a  transfer  by  operation  o£ 
law  to  plaintiff,  for  the  satisfaction  of  his  judgment,  of  the  gar- 
nishee's debt  to  the  defendant.  As  a  consequence  of  this  as- 
sumption, it  is  held  that,  though  judgment  was  rendered 
against  the  garnishee  for  more  than  the  amount  of  his  indebt- 
edness, and  that  such  judgment  was  against  garnishee  as 
surety  for  defendant,  his  payment  thereof  after  service  would 
not  discharge  him.  It  is  broadly  declared  in  this  case  that  a 
payment  of  the  judgment  after  service,  though  under  coercive 
process,  would  not  avail  the  garnishee  as  a  defense.  That  this 
ruling  is  unsound,  in  almost  any  view  of  the  law  of  garnish- 
ment, is  apparent  from  the  error  in  the  general  statement,  that 
the  debt  due  from  the  garnishee  to  the  defendant  is  absolutely 
transferred  by  operation  of  law  by  service  of  the  garnishment. 
The  real  effect  of  such  service  is  only  to  give  the  plaintiff  a 
quasi  lien  upon  any  balance  in  defendant's  favor,  remaining 
after  the  adjustment  of  accounts  between  them.^  It  could  not 
be  claimed  that  defendant  would  have  been  entitled  to  recover 
against  the  garnishee,  while  the  unsatisfied  judgment  stood 
against  the  latter.     Certainly  not  after  the  garnishee  had  sat- 

1  Lynde  v.  Watson,  32  Yt.  648;  Mason  v.  Ambler,  6  Allen,  124;   Smith  v. 
Stearns,  19  Pick.  20;  St.  Louis  v.  Regenf uss,  28  Wis.  144. 

2  CahiU  V.  Bigelow,  18  Pick.  369. 

3  6  Ark.  391. 

*  Smith  V.  Steams,  19  Pick.  20;  Nutter  v.  Framingham  etc  Pu  Co.»  132  Mass. 
427. 


§  516  garnishee's  defenses  380 

isfied  it,  and  the  principal  obligor,  for  whom  it  was  paid,  be- 
came indebted  to  his  surety  in  a  larger  amount  than  the  surety 
originally  owed  him. 

It  is  not  intended  to  question  here  the  general  rule  as  to  the 
time  when  the  set-off  or  counter  claim  must  be  acquired  by 
the  garnishee  in  order  to  render  it  available,^  which  is  some- 
times involved  in  the  consideration  of  collateral  liabilities, 
which  have  not  become  debts  at  the  time  of  service.  The  ques- 
tion as  to  when  the  cross-demand  becomes  due^  trenches  some- 
what upon  the  same  subject.  Boston  Type  Company  ■«.  Morti- 
mer,'' was  a  case  where  the  garnishee,  when  summoned,  was 
not  only  indebted  to  the  defendant,  but  was,  at  the  time,  liable 
for  him  as  accommodation  indorser  of  a  note  exceeding  the 
amount  of  his  indebtedness,  which  note  had  been  protested  for 
non-payment ;  and  was  paid  by  the  garnishee  after  service, 
but  before  answer.  The  Court,  In  deciding  the  case,  confined 
the  ruling  to  the  case,  and  expressly  stated  that  it  was  not  in- 
tended to  extend  the  principle  to  cases  where  the  debt,  urged 
by  way  of  set-off,  was  contingent,  or  created  after  service. 
Nevertheless,  it  was  subsequently  decided  by  the  same  Court, 
where  the  pi'oprietor  of  a  factory  was  summoned  as  garnishee 
of  a  boarding-house  keeper,  in  respect  to  indebtedness  incurred 
for  the  board  of  hands  in  the  manufacturer's  employ,  that  a 
verbal  agreement,  made  by  the  garnishee  to  persons  furnishing 
supplies  to  the  boarding  house,  that  he  would  see  them  paid, 
was  a  liability  for  which  the  garnishee  might  withhold  the  sum 
due  the  defendant  in  order  to  indemnify  himself.^  This  doc- 
trine is  subject  to  the  general  qualification,  that  if  the  indebt- 
edness from  defendant  to  garnishee  is  of  such  a  character  that 
it  could  not  be  set  off  in  an  action  by  the  former  against  the 
latter,  it  will  not  avail  the  garnishee  against  the  attachment 
plaintiff.^  For  this  reason,  it  is  held  that  where  the  garnishee 
has  become  contingently  liable  as  indorser  of  defendant's  com- 
mercial paper,  the  Court  will  not  suspend  judgment  in  the  gar- 

fi  Infra,  §  517. 

6  Infra,  §  518. 

7  T  Pick.  1G6;  19  Am.  Dec.  266. 

s  Cahill  V.  Bigelow,  18  Pick.  369.    See  also  I\Iason  v.  Ambler,  6  Allen,  12ij 
Sweet  V.  Ordway,  23  Pick.  266. 
9  McDowell  V.  Crook,  10  La.  An.  31. 


381  TO  defendant's  cause  of  action.  §  517 

nishment  proceeding  to  await  the  maturity  of  such  paper. "^  So 
it  must  bo  understood  that  the  right  of  set-off  can  be  invoked 
only  when  the  garnishee  is  summoned  as  a  debtor,  and  not 
when  lie  is  garnished  in  respect  to  specific  chattels  in  his  pos- 
session, except  when  he  has,  by  agreement,  a  lien  on  the  chat- 
tels, or  the  statute  gives  him  such  a  lien.^^  But  when  there  is 
an  agreement  between  the  principal  debtor  and  his  surety,  in- 
dorser  or  guarantor,  that  the  latter  may  retain  either  effects 
or  credits  of  the  principal  as  indemnity  against  the  liability 
assumed,  no  subsequent  garnishment  can  disturb  this  contract 
relation,  whether  it  be  an  express  contract  or  one  by  implica- 
tion.^"^ But  such  contracts  must  be  prior  to  service  upon  the 
garnishee ;  otherwise  they  will  not  serve  as  the  foundation  of 
any  defenses  to  the  garnishment.  Thus,  where  the  garnishee 
held  money  of  the  defendant  as  indemnity  for  his  liability  as 
bail  for  the  latter,  it  was  held  that  his  discharge  as  bail  ter- 
minated  his  right  to  hold  any  more  of  such  money  than  was 
necessary  for  his  indemnity ;  and  that  no  agreement  between 
him  and  the  principal  debtor,  after  service  of  process,  could 
affect  their  relations  so  as  to  extend  the  garnishee's  claim  upoa 
the  fund  in  his  hands. ^'^ 

§  517.  When  the  Set-off  Should  be  Acquired,  to  Become 
Available  in  Garnishment. — Briefly,  it  may  be  stated  that  the 
claim  set  up  by  the  garnishee  as  a  cross-demand  must  be  a 
debt  contracted  to  the  garnishee,  or  a  liability  assumed  by 
him,  prior  to  the  service  of  summons  in  garnishment.^  Where 
property  of  the  defendant  was  placed  in  the  hands  of  an  attor- 
ney, to  be  held  nominally  as  security  foi'  future  services,  the 
Court  decided  that  to  permit  the  garnishee  to  set  up  such  a 
claim  asrainst  attaching  creditors,  whether  for  services  still  in 
the  future  or  those   rendered  after    the  garnishee  was  sum- 

i«  Smith  V.  B.  C.  &  M.  R.  R.,  33  N.  H.  337. 

11  Michigan  etc.  R.  Co.  v.  Chicago  etc.  R.  Co.,  1  111.  App.  399. 

12  Nathan  i;.  Giles,  5  Taunt.  558;  Kirkman  v.  Hamilton,  9  Mart.  297;  St. 
Louis  V.  Regsnfuss,  28  Wis.  144;  White  v.  Richardson,  12  N.  H.  93;  Mason  v. 
Ambler,  6  Allen,  124;  Smith  v.  Clarke,  9  Iowa,  241;  Bank  v.  Levy,  1  McMul- 
lan,  431;  Drydenw.  Adams,  29  Iowa,  195;  Ellis  v.  Goodnow,  40  Vt.  237. 

13  Ellis  V.  Goodnow,  40  Vt.  237. 

1  Dyer  v.  McHenry,  13  Iowa,  527;  Wheeler  v,  Emerson,  45  N.  H.  526;  Seamen 
t>.  Bank,  4  W.  Va.  339. 


§  518  garnishee's  defenses  382 

moned,  "would  be  a  fraud  upon  the  creditors.^  The  doctrine  as 
herein  stated  goes  no  farther  than  to  insist  upon  the  acquisi- 
tion of  the  cross-demand  prior  to  service,  and  the  authorities 
cited  are  relied  on  only  so  far  as  they  establish  this  proposi- 
tion. If  the  claim  of  the  garnishee  is  a  debt  originally  due  to 
himself  from  the  attachment  defendant,  it  should  have  been 
contracted  prior  to  the  service  of  the  writ.  This  is  the  gen- 
eral doctrine.  There  may  be  statutes  that  expressly  let  in 
debts  that  become  due  at  any  time  before  final  answer,  but  it 
can  hardly  be  intended  to  include  debts  contracted  subsequent 
to  that  time.  It  may  also  extend  to  debts  subsequently  cre- 
ated or  arising  out  of  previous  contracts.  But  the  debt  must 
at  least  have  its  inception  prior  to  garnishment.  So,  if  the 
claim  is  one  acquired  by  purchase,  it  must  be  purchased,  or  at 
least  contracted  for,  prior  to  service  of  summons.  If  the  gar- 
nishee claim  out  of  the  debt  due  the  defendant  anything  by 
way  of  indemnity  for  liability  assumed  for  defendant,  the  lia- 
bility should  have  been  assumed  before  the  debt  was  garnished 
iu  his  hands. 

§  518.  "WTiether  Set-off  Due  or  to  Become  Due. — But  some 
of  the  authorities  go  farther,  and  hold  that  the  cross-demand 
must  not  only  be  an  existing  debt  or  liability,  but  that  the  debt 
should  be  presently  due  from  the  defendant  to  the  garnishee.^ 
It  is  so  held  in  cases  of  admitted  hardship  on  the  garnishee,  as 
well  where  the  debt  was  absolutely  fixed  prior  to  service  of 
garnishment,  and  did  not  require  even  the  lapse  of  time  to  be- 
come a  binding  obligation,^  as  where  it  was  not  yet  mature,^ 
not  to  mention  those  cases  where  there  was  an  element  of  con- 
tingency, as  where  the  liability  assumed  by  the  garnishee,  on 
account  of  which  he  claimed  indemnity,  was  a  collateral  one. 

We  have  seen  that  the  debt  in  I'espect  to  which  the  gar- 
nishee is  summoned  may  be  attached  before  as  well  as  after 

2  Grain  v.  Gould,  46  111.  293.  See  Farmers'  Bank  v.  Gettinger,  4  West  Va. 
305;  Pennellr.  Grubb,  13  Pa.  St.  522. 

1  Edwards  v.  Delaplaine,  2  Harr.  322;  Watkins  v.  Field,  6  Ark.  391;  Self  u. 
Kirkland,  24  Ala.  275;  Ingalls  v.  Durnett,  6  Me.  79;  Parsons  v.  Boot,  41  Conn. 
161 ;  Peunell  v.  Grubb,  13  Pa.  St.  55-'. 

2  Watkins  v.  Field,  6  Ark.  391;  Field  v.  Watkins,  5  Ark.  672. 
8  Taylor  v.  Gardner,  2  Wash.  C.  C.  488. 


883  TO  defendant's  cause  of  action.  §  518 

maturity.^  And  this  doctrine  is  so  amply  supported  by  au- 
thority, that  It  may  be  said  to  be  general  throughout  the  United 
States,  except  where  the  statute  is  expressly  restricted  in  its 
operations  to  debts  due  at  the  time  of  service.^ 

The  authorities  cited,  it  will  be  noticed,  embrace  decisions  of 
the  Courts  of  last  resort  of  most  of  the  States,  where  it  is 
maintained  that  the  garnishee  cannot  set  off  ao"aInst  the  de- 
mand  made  upon  him  a  debt  upon  which  he  could  not  have 
maintained  an  action  or  counter-claim  at  the  institution  of  the 
suit.  I  do  not,  however,  find  a  case  in  which  It  Is  decided  that 
the  garnishee  will  be  bound  in  respect  to  a  debt  not  due  when 
he  was  served  with  process,  and  yet  could  not  claim  as  a  set- 
off an  immature  demand  upon  the  defendant  in  his  own  favor. 
Set  the  rulings  on  both  branches  of  the  proposition  from  Penn- 
sylvania, Arkansas,  Maine,  and  Alabama,  and  the  Federal 
Courts  opposite  each  other,  and  then  suppose  a  case  arising  in 
either  of  the  jurisdictions  where  It  is  laid  down  as  the  law, 
(1,)  That  a  party  may  be  charged  as  garnishee  in  respect  to 
a  debt  not  due  when  he  was  summoned,  and  (2,)  That  the 
garnishee  cannot  claim  a  set-off  or  counter-claim  not  due  at 
the  time  of  service.  Let  the  hypothetical  case  Involve  both 
questions,  and  to  give  law  and  justice  a  chance  to  struggle  for 
the  mastery,  suppose  the  two  claims  to  be  equal  in  amount,  and 
to  fall  due  at  the  same  time.  Would  either  of  thqse  Courts, 
under  the  rule  declared, give  judgment  against  the  garnishee? 

Elsewhere,  and  perhaps  in  a  majority  of  the  States,  It  has 
been,  or  will  be  when  occasions  arise,  held  that  the  garnishee 
may  set  off  any  debt  which  is  in  existence,  or  contracted  for  at 
the  time  of  service,  though  it  is  to  become  due  in  the  future.^ 

4  Ante,  §  484, 

6  Walker  v.  Gibbs,  2  DaJl.  211;  Fulweiler  v.  Hughes,  17  Pa.  St.  440;  AVillard 
V.  Sheaf e,  4  Moss,  285;  King  v.  Vance,  46  Ind.  246;  Peterson  v.  Sinclair,  83  Pa. 
St.  250;  Say  ward  v.  Drew,  6  Me.  263;  Stewart  v.  West,  1  Harr.  &  J.  536;  Cot- 
trellu.  Varnum,  5  Ala.  396;  39  Am.  Dec.  323;  Dunnigan  v.  Byers,  17  Ark. 
492;  Nichols  v.  Scofleld,  2  R.  I.  123;  Peace  v.  Jones,  3  Murphey,  256;  Fay  v. 
Smith,  25  Vt.  610;  Clapp  v.  Hancock,  1  Allen,  394.  Contra,  Childress  v.  Dick- 
ens, 8  Yerg.  113;  McMinn  v.  Hall,  2  Tenn.  328.  For  statutory  exception,  see 
Morris  v.  Union  Pac.  R.  Co.,  56  Iowa,  135. 

^Swamscot  Machine  Co.  v.  Partridge,  25  N.  H.  369;  Boston  etc.  R.  Co.  v. 
Oliver,  32  N.  H.  172;  Smith  v.  Stearns,  19  Pick.  20;  Allen  v.  Hall,  5  Met.  fMass.) 
263;  Farmers'  etc.  Bank  v.  Franklin  Bank,  31  Md.  404;  Strong  v.  Mitchell,  19 
Vt.  644. 


§  518  Garnishee's  defenses  384 

Thus,  the  statute  in  Vermont  is  construed  to  allow  the  gar- 
nishee to  retain  for  his  indemnity  from  a  note  presently  due, 
a  sum  sufficient  to  cover  the  amount  of  a  note  due  to  him 
from  the  defendant  in  the  future  J  So  in  Massachusetts,  it 
was  held  that  one  who  had  become  liable  on  a  note  as  accom- 
modation indorser,  which,  however,  did  not  become  due  until 
after  the  service  of  process  of  garnishment,  could  not  be 
charged  as  garnishee  of  the  principal  maker  in  respect  to  a 
smaller  debt  due  when  the  garnishment  summons  was  served.^ 

It  is  extremely  questionable  whether  the  ci'editor  may  cause 
himself  to  be  summoned  as  garnishee.^  If  not,  he  is  at  a  de- 
cided disadvantage  with  other  creditors,  unless  he  is  permitted 
to  set  off  debts  not  yet  due  to  himself  when  summoned  as  gar- 
nishee. Under  special  circumstances  the  creditor  may  base  his 
action  on  a  debt  requiring  time  to  mature,  and  in  this  action 
he  may  attach  debts  in  the  same  condition  of  immaturity,  or 
which  are  presently  due,  and  hold  them  until  his  own  demand 
may  be  pressed  to  judgment.  If  he  happens  to  be  both 
debtor  and  creditor  of  the  defendant,  shall  he  be  deprived  of 
his  indemnity,  merely  because  he  cannot  have  himself  sum- 
moned as  garnishee  in  an  action  where  he  figures  as  plaintiff? 

The  general  objection  to  the  right  of  the  garnishee  to  set  off 
debts  not  due  is,  that  garnishment  does  not  disturb  the  recip- 
rocal rights  of  the  parties  to  the  proceeding.  That  the  plain- 
tiff is  subrosjated  to  the  rio-hts  of  the  defendant  ag-ainst  the 
garnishee,  and  the  latter  could  not,  if  sued  by  his  creditor, 
claim  as  a  set-off  a  debt  which  became  due  in  the  future.  But 
the  doctrine  of  exact  subrogation  does  not  apply.  The  plain- 
tiff is  not  restricted  to  the  exercise  of  the  rights  of  the  de- 
fendant. He  may  obtain  judgment  against  the  garnishee 
under  circumstances  where  the  defendant,  suing  in  his  own 
right,  would  be  held  to  have  no  cause  of  action,  because  his 
demand  was  not  due.  It  therefore  requires  no  strained  con- 
struction to  hold  that  the  garnishee  shall  be  entitled  to  protec- 
tion against  the  consequences  of  the  altered  relation  between 

"  Lynde  v.  Watson,  52  Yt.  648. 

8  Boston  Type  Co.  v.  Mortimer,  7  Pick.  166;  19  Am.  Dec.  266.    SeeBoardman 
V.  Gushing,  12  X.  H.  105. 

9  Ante,  §  457. 


385  TO  dependant's  cause  of  action.  §  519 

himself  and  his  creditor,  which  are  brought  about  by  an  ex- 
traordinary proceeding  to  which  he  is  an  involuntary  party. 

§  519.  Defense  of  Failure  of  Consideration. — Among  the 
defenses  which  are  available  where  one  is  sued  on  a  contract, 
is  that  of  failure  of  consideration  ;  and  to  the  same  extent  as 
the  defendant  in  such  an  action  may  resist  payment  on  this 
ground,  may  the  garnishee  support  his  denial  of  indebtedness 
under  the  contract.^  Thus,  where  one  was  indebted  on  a  note, 
the  consideration  of  which  vras  certain  real  estate  purchased 
from  the  defendant,  and  after  the  note  was  given,  the  pur- 
chaser disco vei*ed  that  there  was  a  judgment  lien  against  the 
real  estate  for  an  amount  sufficient  to  absorb  the  note  ;  and 
the  purchaser,  in  order  to  free  his  title,  was  compelled  to  sat- 
isfy the  judgment,  it  was  held  that  he  could  not  be  charged 
as  garnishee  of  the  payee. ^  So  where  the  party  summoned 
has  any  ground  of  defense  on  account  of  the  failure,  or  want 
of  consideration,  whether  total  or  partial,  he  may  avail  him- 
self of  it  against  the  plaintiff  in  attachment.  But  whatever 
such  defense  may  be,  it  must  be  such  as  the  garnishee  could 
have  urged  against  the  defendant,  had  he  sought  to  recover  in  a 
direct  proceeding.^  It  will  not  sustain  a  plea  of  no  considera- 
tion to  show  that  money  in  the  hands  of  the  garnishee  was  re- 
ceived by  him  as  agent  of  the  defendant  in  carrying  on  an  il- 
licit traffic,  as  the  sale  of  intoxicating  liquors,  where  such  sale 
is  prohibited  by  law,*  although  it  might  be  held  otherwise 
where  the  prohibited  merchandise  was  the  direct  consideration 
of  the  debt. 

Very  nearly  related  to  the  failure  of  consideration,  is  where 
the  party  summoned  has  been  previously  discharged  from  lia- 
hility,  by  an  offer  of  performance  which  was  not  accepted  ;  or 
where  the  defendant  by  his  conduct  has  put  it  out  of  the  pow- 
er of  the  party  garnished  to  perform  his  contract.    In  all  such 

iMoser  v.  Maberry,  7  Watts,  12  ;  Mathis  v.  Clark,  2 Mill, Coast. 45G  ;  12 Am. 
Dec.  G88. 

2  Sheldon  v.  Simonds,  Wright,  724.     See  Russel  v.  Hinton,  1  Murphy,  468  ; 
Ball  V.  Citizens'  etc.  Bank,  39  Ind.  364. 

8  Jones  V.  Tracy,  75  Pa.  St.  417  ;  Norcross  v.  Benton,  38  Pa.  St.  217  ;  Blanclii» 
ard  V.  Cole,  8  La.  IGO  ;  Wells  v.  Mace,  17  Vt.  503. 

*  Thayer  v.  Partridge,  47  Vt.  423. 
II.  Attach — 25. 


§  520  garxishee's  defenses  386 

cases,  Avhcre  the  failure  of  one  of  the  contracting  parties  is 
such  that  the  other  is  not  bound,  no  indebtedness  arises,  and 
tlie  latter  may  not  be  summoned  as  garnishee  of  the  former.^ 

§  520.  The  Statute  of  Limitations  and  other  Defenses. — 
"When  the  debt  in  respect  to  which  the  garnishee  is  summoned 
is  barred  by  the  statute  of  Hmitations,  he  may  set  this  up  in 
the  proceeding  as  a  defense.^  The  only  condition  to  his  right 
to  this  defense  is  that  it  would  have  been  equally  available  as 
a  defense  to  the  creditor's  suit  against  the  party  summoned.^ 
And  in  pleading  the  statute,  it  is  held  sufficient,  in  the  absence 
of  special  interrogatories,  that  the  garnishee  in  his  answer  de- 
clared that  every  claim  which  the  defendant  might  have  against 
him  was  barred  by  the  statute  of  limitations.^ 

So  the  garnishee  cannot  insist  upon  a  claim  barred  by  the 
statute,  by  way  of  set-off.  In  this  connection  it  was  decided, 
that  in  order  to  introduce  such  a  set-off,  an  executor  sum- 
moned as  garnishee  of  a  legatee,  and  holding  a  note  in  his  own 
right  against  the  legatee,  upon  which  the  testator  was  surety, 
which  note  was  barred  prior  to  the  testator's  death,  could 
not  revive  it  in  his  own  favor  against  the  estate.^ 

So,  under  a  denial  of  indebtedness,  when  interrogated  in  re- 
spect to  the  obligation  of  a  contract  falling  within  the  statute  of 
frauds,  the  garnishee  might  avail  himself  of  the  statute. 

The  fact  that  the  money  received  is  paid,  and  not  deposited^ 
under  a  contract  on  the  part  of  garnishee  to  render  certain  ser- 
vices, or  furnish  certain  specific  articles,  which  contract  the 
garnishee  has  a  subsisting  right  to  perform,  does  not  make  him 
the  debtor  of  the  other  contracting  party,  and  hence  he  cannot 
be  so  held  as  garnishee.^ 

But  the  defense  set  up  by  the  garnishee  must  be  one  that  is 
legally  conclusive,  or  goes  as  a  fact  to  the  merits.  Where 
the  garnishment  was  a  proceeding  supplementary  to  execution, 

6  Jewett  V.  Bacon,  6  Mass.  60. 

1  Grossman  v.  Grossman,  21  Pick.  21  ;  Benton  v.  Lindell,  10  Mo.  557;  Hogan 
V.  Emerson,  9  Pick.  144  ;  James  v.  Fellows,  20  La.  An.  116. 

2Hinkle  v.  Currin,  2  Humph.  137;  Gee  v.  Gumming,  2  Hayw.  (N.  0.)  398; 
Gee  V.  Warwick,  2  Hayw.  N.  G.  354. 

8  Grossman  v.  Grossman,  21  Pick.  21. 

4  Wadleigh  r.  Jordan,  74  Me.  483.  f 

6  Wheelock  r.  Tuttle,  10  Gush.  123  ;  Kandolph  V.  Eandolph,  34  Tex.  181. 


3S7  TO  defendant's  cause  of  action.  §  521 

it  was  held  no  valid  defense  that  the  plaintiff  was  not  the  own- 
er of  the  judgment.'^  So  it  was  held,  that  it  would  not  avail 
the  garnishee  to  show  that,  by  his  contract  with  defendant,  he 
was  to  pay  the  debt  at  a  certain  time,  and  at  a  place  outside 
of  the  State  in  which  the  action  was  brouglit,  the  Court  hav- 
ing acquired  complete  jurisdiction  of  the  parties  and  the  sub- 
ject matter. ''' 

When  the  garnishee  relies  upon  affirmative  matter  to  ex 
empt  him  from  liability,  after  admitting  his  original  indebted- 
ness or  the  possession  of  defendant's  property,  he  will  in  gen- 
eral be  held  to  establish  it  by  a  reasonable  preponderance,  pre- 
cisely as  though  he  had  assumed  the  affirmative  of  the  issue  in 
an  action  brought  against  him  by  his  debtor.^  And  where  he 
relies  upon  any  such  affirmative  defense  in  his  answer,  he  must 
adhere  to  it  under  the  rules  of  pleading  applicable  to  ordinary 
actions.  Certainly,  he  should  not  be  permitted  to  abandon  his 
line  of  defense  on  the  hearing,  and  set  up  another  in  lieu 
thereof  which  is  inconsistent  therewith.^ 

6  Jackson  v.  Shipman,  28  Ala.  488. 

■J  National  Bank  v.  Chicago  etc.  R.  Co.,  45  Wis.  172. 

spenell  v.  Grubb,  13  Pa.  St.  552. 

8  First  Baptist  Church  v.  Hyde,  40  111.  150. 


CHAPTER  XLIII. 

JUDGMENT    IN    GARNISHMENT. 

§  521.  Judgments  upon  which  the  judgment  against  garnishee  depends. 

§  522.  Judgment  by  default  against  garnishee. 

§  523.  Judgment  on  garnishee's  answer. 

§  524.  Garnishees  of  judgment  and  execution  creditors. 

§  52.5.  Force  and  effect  of  the  judgment  against  garnishee.  * 

§  526.  Judgment  against  intervenor. 

§  527.  Collateral  attack  on  the  judgment  in  garnishment. 

§  528.  Judgment  discharging  the  garnishee. 

§  521.  Judgments  upon  which  the  Judgment  against  Gar- 
nishee Depends. — The  judgment  rendered  in  a  garnishment  pro- 
ceeding may  be  for  or  against  the  garnishee,  in  respect  to  the 
debt  or  property  alleged  to  be  due  to,  or  to  belong  to,  defend- 
ant. It  is  proposed  herein  to  consider  the  judgment  against 
the  garnishee  first  in  order.  This  judgment,  in  order  to  be- 
come the  foundation  for  final  process,  must  be  supported  by  a 
judgment  against  defendant.^  This  follows  from  the  nature  of 
the  judgment  against  garnishee,  which  is  only  a  condemnation 
of  the  debt  he  owes  to  the  payment  of  plaintiff's  demand 
against  defendant.^  In  Michigan,  it  is  held  that  a  justice  of 
the  peace  cannot  give  judgment  against  the  garnishee,  until 
after  he  has  rendered  a  valid  judgment  against  the  principal 
defendant,  in  a  cause  of  which  he  has  jurisdiction.^  And  in 
any  event,  where  the  statute  authorizes  the  rendition  of  a 
judgment  before  the  principal  judgment  in  the  case,  the  for- 
mer judgment  will  be  regarded  as  merely  provisional  or  condi- 
tional, and  will  not  authorize  final  ])rocess  until  judgment  is 
rendered  against  defendant.  Where  a  verdict  was  obtained 
against  the  defendant  on  July  11, 1876,  but  no  judgment  was 

1  Laidlaw  v.  Morrow,  44  Mich.  547;  Withers  i'.  Fuller,  SOGratt.  547;  Jackson 
V.  Shipman,  28  Ala.  488;  Bean  v.  Barney,  10  Iowa,  498. 

2  Graves  v.  Cooper,  8  Ala.  811. 

8  Laidlaw  v.  Morrow,  44  Mich.  547. 


389  JUDGMENT   IN   GARNISHMENT.  §   521 

entered  until  May  19,  1879,  when  an  order  was  taken  to  en- 
ter judgment  nunc  pro  tunc,  and  in  the  mean  time,  on  April 
17,  1870,  judgment  was  entered  up  against  the  garnishee,  such 
judgment  was  held  properly  set  aside  on  motion.^  Whether 
any  judgment  whatever  may  be  entered  against  the  garnishee 
is  a  matter  of  statutory  regulation,  and  is  of  little  conse- 
quence, so  long  as  it  remains  conditional  until  the  princi- 
pal demand  has  been  reduced  to  judgment.  In  some  of  the 
States  an  execution  issues  against  the  garnishee,  when  judg- 
ment is  obtained  against  the  defendant,  and  In  others  he  be- 
comes subject  to  a  rule  to  show  cause  why  such  execution 
should  not  issue.  But  neither  the  execution  nor  the  rule  will 
be  in  order  until  the  judgment  becomes  final  and  conclusive, 
so  far  as  defendant's  indebtedness  is  concerned,  except  where 
the  latter  judgment  is  by  default,  in  foreign  attachment,  in 
some  of  the  States  where  it  is  subject  to  be  reopened  within  a 
year  and  a  day. 

It  is  also  held  in  Alabama,  that  in  order  to  sustain  a  final  judg- 
ment against  the  garnishee,  the  record  must  clearly  show  the  pre- 
vious conditional  judgment  against  him,  in  the  statutory  forra.^ 
And  that  neither  the  words  "  Judgment  nisi  as  to  J.  T.  B. " 
following  the  judgment  against  the  defendant  in  attachment, 
nor  a  mere  recital  in  the  final  judgment,  of  the  fact  that  judg- 
ment nisi  had  been  rendered,  without  showing  its  validity,  was 
sufficient.^  The  record  of  the  judgment  against  the  garnishee 
must  also  recite  the  principal  judgment,  and  must  specify  the 
amount  thereof.^  And  the  only  way  in  which  the  principal 
judgment  can  be  made  to  appear  of  record  on  appeal  from  the 
judgment  against  garnishee.  Is  by  Incorporating  it  in  the  bill 
of  exceptions.  Where  this  was  not  done,  the  Supreme  Court 
refused  to  correct  the  Irregularity  In  the  judgment  against  gar- 
nishee, from  which  the  recital  had  been  omitted.^  In  addition 
to  the  judgment  nisi,  the  Alabama  statute  requires  that  a  scire 
facias  must  be  served  on  the  garnishee  and  returned,  or  two 
such  writs  must  be  returned  "  not  found,"  by  the  sheriff  of  the 

4  Bryan  v.  Dean,  G3  Ga.  317. 

6  Code  Ala.,  §2545. 

6  Bonner  v.  Martin,  37  Ala.  83  ;  Goode  v.  Holcombe,  37  Ala.  94. 

TFaulks  V.  Heard,  31  Ala.  516.  , 

BFaulks  V.  Heard,  31  Ala.  516 ;  Gunn  v.  Howell,  27  Ala.  663. 


§    522  JUDGMENT   IN   GARNISHMENT.  390 

county  in  which  the  garnishment  was  served  ;  otherwise  the 
omission  will  be  regarded  as  fatal  to  the  judgment.^  In  Geor- 
gia, since  the  Act  of  1880, ^'^  the  law  applicable  to  judgments 
against  garnishees  in  Justices'  Courts  has  been  similar  to  that 
which  governs  in  other  Courts.  A  final  judgment  against  the 
defendant  is  a  condition  precedent  to  a  judgment  against  the 
garnishee,  and  if  before  such  final  judgment  is  obtained  the 
garnishee  appear  and  answer,  he  will  be  in  time  to  prevent 
judgment  by  default.^^  But  when  the  judgment  is  rendered 
against  the  garnishee,  after  judgment  against  the  defendant, 
it  is  not  necessary  to  render  another  judgment  against  the  de- 
fendant. It  is  sufficient  to  recite  the  judgment  previously 
rendered.^2 

§  522.  Judgment  by  Default  against  Gramishee. — The  judg- 
ment against  the  garnishee  may  be  rendered  for  failure  to  an- 
swer, when  he  has  been  regularly  served  with  process.  To 
some  extent,  the  process  in  garnishment  imposes  the  same  ob- 
ligation under  the  same  penalty  as  original  process  at  common 
law  when  served  on  the  defendant.  For  failure  to  answer 
within  the  time  specified,  a  default  may  be  taken  against  the 
delinquent.^  Such  default  may  be  taken  for  failure  to  file  the 
general  answer,  or  for  failure  to  answer  interrogatories.^  But 
final  judgment  does  not  follow,  as  of  course,  the  entry  of  gar- 
nishee's default.  Judo;ment  must  still  be  obtained  against  the 
defendant,^  and  the  Court  may,  in  its  discretion,  set  aside  a 
judgment  so  entered  in  a  case  of  excusable  oversight,  and  the 
garnishee  be  permitted  to  answer  the  interrogatories  regardless 
of  whether  their  tendency  is  to  discharge  him  from  liability, 
or  merely  to  show  the  extent  to  which  he  may  be  charged  as 
a  debtor  of  the  defendant.*  In  exercising  the  discretion  with 
which  Courts  are  invested  as  to  setting  aside  judgments  by  de- 

^Goode  V.  Holcombe,  37  Ala.  94. 

10  Code,  §  3304. 

11  Arnold  v.  Gullatt,  68  Ga.  810. 
i^Keimedy  v.  Alridge,  5  B.  Mon.  141. 

1  Corbyn  v.  Bellman,  4  "W.  &  S.  342. 

2  Corbyn  v.  Bollman,  4  W.  &  S.  342. 
^  Supra,  §  521. 

4  Marchand  v.  Noyes,  33  La.  An.  882  ;  Hueskamp  v.  Van  Leuven,  56  Iowa, 
663. 


391  JUDGMENT   IN   GARNISHMENT.  §    522 

fault,  gjceater  indulgence  is  extended  to  garnishees  than  to  de- 
fendants under  like  circumstances.  Thus,  where  the  gar- 
nishee's affidavit,  in  support  of  a  motion  to  set  aside  a  judg- 
ment obtained  against  him  in  this  manner,  was  to  the  effect 
that  he  had  been  busy  building,  and  that  on  the  day  when  he 
should  have  appeared  he  was  busily  engaged  in  moving  into 
and  furnishing  a  new  hotel,  and  was  so  enerasied  in  the  busi- 
ness,  and  the  length  of  time  between  the  service  of  the  writ 
and  the  day  for  appearance  was  so  great,  that  the  matter  had 
wholly  escaped  his  memory,  the  Supreme  Court  sustained  the 
discretionary  judgment  by  which  the  default  was  set  aside, 
but  intimated  that  had  it  appeared  that  the  garnishee  was  neg- 
ligent, they  might  have  held  otherwise.'^  Where  the  garnishee 
appeared  in  Court  in  response  to  the  summons,  and  was  ready 
to  answer,  but  by  arrangement  with  the  plaintiffs'  attorneys 
the  taking  of  his  answer  was  deferred,  and  that  he  accordino-- 
ly  went  away,  and  in  his  absence  was  defaulted,  shows  suffi- 
cient grounds  for  setting  aside  the  default.*"  A  more  satisfac- 
tory showing  of  diligence  will  generally  be  required,  when  the 
judgment  against  the  garnishee  has  been  allowed  to  become 
final,  and  is  collaterally  attacked  by  the  garnishee,^  or  when  he 
seeks  to  show  cause  on  scire  facias  why  final  judgment  should 
not  be  entered  against  him,  for  failure  to  answer.  In  the  lat- 
ter event,  he  must  not  only  excuse  his  default,  but  show  a 
meritorious  defense.^  Mere  ignorance  of  the  necessity  of  ap- 
pearing, which  is  not  founded  upon  some  alleged  deceit  prac- 
ticed upon  the  party  summoned  by  the  plaintiffs,  or  others  in- 
terested against  him,  will  not  suffice  to  warrant  setting  aside 
the  default.^  When  the  garnishee  is  regularly  summoned, 
and  has  an  opportunity  to  make  his  defense,  and  neglects  to 
do  so,  and  judgment  is  I'egularly  entered  against  him,  he  will 
not  be  heard  to  say,  after  the  term  has  passed,  that  it  was  ob- 
tained by  mistake  or  surprise.^^     A  judgment  by  default,  to 

6  Evans  v.  Mohn,  55  Iowa,  302. 

6  Hueskamp  v.  Van  Leuven,  56  Iowa,  653. 

7  Atlantic  etc.  Ins.  Co.  v.  Wilson,  5  E.  I.  479  ;  Infra,  §  527. 

8  Field  V.  Wood,  9  Iowa,  249  ;  Smith  v.  Clarke,  9  Iowa,  241 ;  Parmenter  v, 
Childs,  12  Iowa,  22. 

5  Freidenricli  v.  Moore,  24  Md.  295. 
w  Abell  V.  Simon,  49  Md.  318. 


§    522  JUDGMENT   IX   GARXISUMENT.  392 

become  tlie  foundation  of  a  valid  final  judgment  against 
the  garnishee,  must  be  rendered  on  valid  process  ;  otherwise 
the  judgment  will  be  open  to  attack  on  jurisdictional  grounds. 
Thus,  where  the  writ  of  garnishment  fails  to  designate  the 
cause  in  which  the  garnishee  is  called  upon  to  answer,  or  wlien 
the  affidavit  for  the  writ  omits  to  state  that  the  garnishee  re- 
sides in  the  county  where  the  suit  was  brought,  these  facts  be- 
ing necessary  to  jurisdiction,  no  judgment  can  be  entered  for 
the  failure  to  appear  and  answer. ^^  Nevertheless,  it  is  held 
that  the  service  of  the  writ  is  not  void,  but  only  irregular, 
when  served  in  the  wrong  place,  and  such  irregularity  may  be 
■waived. ^^  W  here  the  garnishee  failed  to  appear  in  response 
to  summons,  it  was  held  that  his  default  might  be  entered  be- 
fore interrogatories  were  filed  by  plaintiff,  it  not  being  neces- 
sary to  file  such  interrogatories  until  after  the  garnishee  had 
entered  his  appearance,  and  the  Supreme  Court  refused  to  re- 
view the  action  of  the  Court  below  in  refusing  to  set  aside  the 
default  on  garnishee's  application.^^  But  in  Illinois  it  is  held 
that  the  affidavit  for  garnishment  on  a  judgment  should  state 
the  amount  of  the  judgment,  and  that  interrogatories  for  gar- 
nishee to  answer  should  be  filed  before  he  could  -be  adjudged 
in  default. ^^  In  a  somewhat  early  case  in  Alabama,  where 
the  garnishee  failed  to  appear,  and  no  action  was  taken  against 
liim  during  the  return  term,  but  an  order  of  publication  was 
taken  as  to  the  defendant,  and  at  the  following  term,  judg- 
ment by  default  7iisi  was  taken  against  the  garnishee,  the  pro- 
ceeding was  held  regular,  and  that  there  was  no  discontin- 
uance as  to  the  garnishee. ^°  In  Louisiana,  it  has  been  decided 
that  a  neorlect  to  answer  within  the  time  is  considered  a  con- 
fession  of  liability — but  only  to  the  amount  of  the  debt  men- 
tioned in  the  Interrogatories — and  that  the  formality  of  default 
•was  not  necessary;  also,  that  a  failure  to  obtain  judgment  at 
the  time  judgment  was  rendered  against  the  defendant,  was 
no  waiver  of  the  right  to  pi'oceed  against  the  garnishees  at  a 

11  Johnson  v.  McCutcliings,  43  Tex.  553. 

12  Peters  v.  League,  13  Md.  58. 

laParmentert).  Childs,  12  Iowa,  22 ;  United  States  Ex.  Co.  v.  Bedbury,  34 
HI.  459. 

"  Stickley  v.  Little,  29  III.  315. 
^  Eobinson  v.  Starr,  3  Stew.  90. 


393  JUDGMENT   IN   GARNISHMENT.  §   522 

future  day.'^  But  where  the  garnishee  filed  his  answers  to  in- 
terrogatories, and  six  years  thereafter  the  plaintiff  took  a  rule 
against  the  garnishee,  to  show  cause  why  judgment  should  not 
be  rendered  against  him,  it  was  held  that  final  judgment  could 
not  be  rendered  therein. ^^ 

Some  question  may  be  made  of  the  authenticity  of  gar- 
nishee's answer,  particularly  when  it  controverts  the  assump- 
tions of  indebtedness  or  possession  of  property  upon  which  he 
was  summoned.  That  is,  it  may  be  questioned  whether  the 
answer  was  filed  by  his  authority.  But  where  an  agent  has 
been  served  with  process  against  a  foreign  corporation,  and 
such  agent  has  been  authorized  to  accept  service  jf  process  in 
actions  generally,  the  corporation  cannot  be  treated  in  default 
for  want  of  an  answer,  after  disclosures  filed  by  such  agent. ^^ 
Indeed,  the  authority  of  an  agent  or  attorney  to  appear  by  an- 
swer in  any  case  of  garnishment  can  hardly  be  more  closely 
inquired  into,  than  would  be  his  authority  to  appear  in  an  or- 
dinary action  in  behalf  of  the  defendant. 

There  are  several  incidents  to  the  judgment  which  is  finally 
entered  on  garnishee's  failure  to  answer,  which  apply  uniform- 
ly, and  are  necessary  to  the  validity  of  the  judgment  where- 
ever  relied  on.  1.  The  Court  must  not  only  have  jurisdic- 
tion of  the  parties  and  the  subject  matter,  but  such  jurisdiction 
should  be  apparent  in  the  record.  The  essentials  to  jurisdic- 
tion will,  of  course,  depend  upon  the  requirements  of  the  stat- 
ute in  that  behalf.  2.  The  garnishee  must  not  have  been 
prevented  from  appearing  by  deceit  practiced  upon  him  by 
plaintiff;  but  this  negative  matter  need  not  appear  of  record, 
otherwise  than  inferentially  from  the  recitals  showing  juris- 
diction. 3.  The  amount  of  the  judgment  thus  obtained  will 
be  limited  strictly  to  the  sum  expressed  in  the  preliminary  af- 
fidavit, or  the  process.  4.  The  default  will  not  be  excused 
by  mere  irregularities  in  the  proceedings,  that  do  not  affect 
the  jurisdiction;  nor  by  ignorance  of  the  law,  or  negligence 
on  the  part  of  the  party  summoned.'^ 

16  Sturges  V.  Kendall,  2  La.  An.  565. 

17  Slatter  v.  Tiernan,  6  La.  An.  567. 
iSLormanu.  Phoenix  Ins.  Co.,  33  Mich.  65. 
'^  Supra. 


§.  523  JUDGMENT   IN    GARNISHMETTT.  394 

§  523.  Judgment  on  Garnishee's  Answer. — After  the  judg- 
ment, which  may  be  had  on  the  garnishee's  failure  to  appear 
and  answer,  comes  the  judgment  that  may  be  entered  on  the 
answer  itself,  as  the  more  expeditious  procedure  against  the 
garnishee.  This  may  be  on  the  general  answer,  or  the  answers 
to  interroQ-atories,  taken  altoo;ether. 

The  garnishee  is  summoned  upon  the  assumption  that  he  has 
in  his  possession,  or  under  his  control,  certain  specific  property 
which  belongs  to  defendant,  or  in  which  he  has  an  interest ; 
or  that  he  is  indebted  to  defendant.  The  assumption  goes 
farther,  and  takes  it  for  granted  that  none  of  those  circum- 
stances, such  as  prior  liens,  contracts,  and  the  like  exist,  where- 
by garnishee's  liability  to  defendant  may  be  qualified  or  abro- 
gated. If  the  garnishee,  answering,  admits  these  assumptions 
to  be  so  far  correct  that  there  is  a  subsisting,  unembarrassea 
liability  to  defendant,  and  no  intervening  claims  of  which  he 
was  ignorant  appear  from  other  sources,  the  judgment  taken 
against  the  garnishee  is  simply  one  of  confession.  And  though 
the  answer  expressly  denies  all  liability,  yet  if  the  facts  disclosed 
clearly  show  indebtedness,  it  will  be  treated  as  a  pleading  which 
draws  erroneous  conclusions  from  admitted  facts,  and  he  may 
be  charged  on  his  answer.-^  So,  where  the  garnishee  filed  an 
answer,  admitting  the  possession  of  funds  of  defendant — at 
the  same  time  moving  to  quash  the  attachment,  but  giving  no 
reasons  for  his  motion — and  the  intervening  claimant  failed  to 
show  any  interest  in  himself,  it  was  very  properly  held  that 
judgment  for  plaintiff  must  follow.^  The  admissions  of  the 
garnishee,  and  in  fact  his  whole  answer,  has  been  treated 
as  evidence  adduced  by  plaintiff,  who  is  bound  by  his  testi- 
mony, as  he  would  be  by  any  witness  called  to  establish  or  dis- 
prove a  controverted  fact.^  This,  however,  is  a  theory  that 
can  only  be  followed  until  we  encounter  plaintiff's  unques- 
tioned right  to  take  issue  on  the  garnishee's  answer.^  It  also 
differs  from  evidence  in  ordinary  cases,  for  the  reason  that  its 
admissions  are  only  binding   upon  the  garnishee  answering. 

1  Donnelly  v.  O'Connor,  22  Minn.  309. 

2  Robertson  v.  Beall,  10  Md.  125. 

3  Banning  v.  Sibley,  3  Minn.  389. 
1  Ante,  Ch.  XXVIII. 


395  JUDGMENT   IN   GARNISHMENT.  §    523 

Hence,  where  two  executors  were  sought  to  be  garnished,  but 
only  one  was  served  and  answered,  judgment  could  not  be  en- 
tered against  both  on  such  answer.^ 

It  may  also  be  a  matter  for  consideration  whether  the  an- 
swer shows  indebtedness  at  the  time  of  service.  Where  sub- 
sequent indebtedness  is  not  affected  by  garnishment,  it  is  not 
sufficient  that  the  answer  shows  indebtedness,  unless  it  had 
accrued,  and  under  some  statutes,  in  particular  cases,  that  it 
was  due  when  the  summons  was  served.*^ 

When  the  garnishment  is  issued  in  aid  of  an  execution,  in 
Nebraska,  no  personal  judgment  against  the  garnishee  is  re- 
quired. It  is  simply  an  order  for  him  to  pay  into  Court  the 
amount  admitted  to  be  due  and  payable  to  defendant.  This 
order  may  be  enforced  by  execution  ;  but  if  personal  judgment 
is  required  against  the  gai'nishee,  resort  must  be  had  by  plain- 
tiff to  a  personal  action,  as  jjrovided  by  the  code  of  that  State 
in  cases  of  garnishment  before  judgment.'^ 

In  order  to  obtain  judgment  on  the  answer,  or  the  answers 
to  interrogatories  filed,  they  must  be  considered  as  a  whole, 
and  it  must  clearly  appear  that  garnishee  is  chargable.^  If 
the  facts  stated  in  the  answer  leave  a  reasonable  doubt  wheth- 
er he  is  liable  or  not,  the  judgment  should  be  in  his  favor. ^ 
The  natural  import  of  the  language  used  in  the  answer  must 
control  its  construction,  and  the  garnishee  is  to  be  charged,  or 
not,  according  as  the  evidence  afforded  by  the  entire  answer 
preponderates.^*^  It  is  for  the  plaintiff  to  prove  his  allegations, 
and  not  for  the  garnishee  to  disprove  them.^^  So,  where  the 
answer  stated  that  the  defendant  in  atttachment  placed  in  the 
hands  of  the  garnishee  money  which   the  defendant  said,  and 

6  Terry  v.  Lindsay,  1  Stew.  &  Port.  317. 

6  Morris  v.  Union  Pacific  R.  Co.,  5G  Iowa,  135,  137;  Sanford  v.  Bliss,  12  Pick. 
116. 

T  Clark  V.  Foxworthy,  14  Neb.  241. 

8  Banning  ?'.  Sibley,  3  Minn.  389;  Church  v.  Simpson,  25  Iowa,  408;  Coe  r. 
Eocha,  22  La.  An.  590;  Frost  v.  Patrick,  3  Sm.  &  M.  783:  Lorman  v.  Phoenix 
Ins.  Co.,  33  Mich.  65;  Rich  i'.  Reed,  22  Me.  28;  Moore  v.  Moore,  12  Phila.  173; 
Pierce  v.  Carleton,  12  111.  358;  54  Am.  Dec.  405. 

^  Banning  v.  Sibley  ,3  Minn.  389;  Morse  v.  Marshall,  22  Iowa,  290;  Pioneer 
Printing  Co.  v.  Sanborn,  3  Minn.  413,  Perine  v.  George,  5  Ala.  641;  Thompson 
V.  Fischesser,  45  Ga.  369;  Wyman  v.  Stewart,  42  Ala.  163. 
.  "  Bibb  V.  Preston,  1  Iowa,  4G0. 

"  Cardauy  v.  New  England  Furniture  Co.,  107  Mass.  116. 


§   523  JUDGMENT   IN   GARNISHMENT.  396 

tlio  garnisliee  believed,  belonged  to  a  third  party,  it  was  held 
that,  the  answer  being  iincontroverted,  was  insufficient  to  war- 
rant a  judgment  against  the  garnisliee.'^  Thougli  the  answer 
be  somewhat  vague  in  its  statements,  and  inartificially  drawn, 
yet  if  it  contains  a  substantial  denial  of  indebtedness,  it  is  error 
to  render  judgment  thereon  against  the  garnishee. ^^  So,  where 
exceptions  were  taken  to  the  manner  of  answering  tlie  interrog- 
atories filed,  and  six  years  after  the  answers  were  filed,  plain- 
tiff took  a  rule  on  the  garnishee  to  show  cause  why  judgment 
should  not  be  rendered  on  such  answers,  it  was  held  that  final 
judgment  could  not  be  rendered  in  the  case  against  the  garnish- 
ee.^^ But  where  the  answer  admitted  indebtedness  to  "  defend- 
ant," there  being  two  defendants,  and  the  proceedings  indicated 
which  one  of  the  defendants  was  meant,  the  judgment  ren- 
dered on  the  answer  was  sustained. ^^  In  Pennsylvania,  it 
seems  to  be  improper  in  any  event  to  enter  judgment  in  favor 
of  the  garnishee  on  his  answer.  When  it  does  not  show  liabil- 
ity, all  that  can  be  done  is  to  refuse  to  render  judgment  for 
plaintiff  in  the  garnishment  proceeding. ^'^  This  seems  to  be 
more  of  a  distinction  in  names  than  a  substantial  difference  in 
modes  of  accomplishing  the  same  end,  as  the  Court  can  hardly 
avoid  making  a  final  order  of  some  sort,  disposing  of  the  con- 
troversy. But  in  a  somewhat  early  case  in  Mississippi,  it  was 
held  that  where  the  answer  narrated  certain  facts  which  did 
not  disclose  any  indebtedness,  and  its  truth  was  not  controvert- 
ed, final  judgment  could  not  be  entered  ;  but  the  Court  should 
enter  judgment  Wisi,  and  a  scire  facias  should  be  ordered.^' 
This  would  give  the  plaintiff  the  benefit  of  a  default,  and  the 
answer  would  still  be  open  to  question  on  the  hearing  under 
the  rule  to  show  cause.  In  most  of  the  States,  however,  where 
the  uncontroverted  answer  is  relied  upon  by  the  plaintiff,  and 
fails  to  show  liability,  the  garnishee  will  be  discharged. 

The  statements  so  frequently  made  in  the  authorities  cited, 
that  where  the  answer  does  not  affirmatively  show  the  garni- 

1-  Oliver  v.  Atkinson,  11  Port.  546. 

13  Smith  V.  Brunei,  23  Miss.  508. 

"  Slatter  w.  Tiernan,  G  La.  An.  567;  Lockhart  v.  Johnson,  9  Ala,  223. 

15  Gould  V.  Meyer,  36  Ala.  565. 

16  Hes.s  V.  Sborb,  7  Pa.  St.  231;  Moore  v.  IMoore,  12  Pbila,  173. 
1'  Frost  V.  Patrick,  3  Sm.  &  M.  783. 


397  JUDGMENT   IN   GARNISHMENT.  §    524 

shee's  liability,  In  the  absence  of  any  evidence  by  wlilcli  It  Is 
contradicted,  the  judgment  will  be  In  his  favor,  must  be  taken 
with  this  qualification. 

The  answer,  to  be  taken  as,  iwima  facie,  favorable  to  the 
party  making  It,  must  be  fully  responsive,  explicit  and  unequiv- 
ocal. Where  It  Is  manifestly  evasive,  and  evinces  a  disposi- 
tion on  the  part  of  the  party  summoned  to  conceal  or  equivo- 
cate in  regard  to  the  question  of  his  liability  ;  substituting 
mere  conclusions  of  law  for  the  facts  Avhich  are  the  real  sub- 
ject of  Inquiry,  it  will  be  construed  most  strongly  against  the 
garnishee,  and  the  judgment  may  properly  go  against  him,  as 
for  the  want  of  an  answer.'^  But  In  order  to  have  this  effect, 
the  answer  will  not  be  judged  evasive  upon  any  stralne.d  con- 
struction of  its  language.  When  he  has.  In  good  faith,  fully 
and  explicitly  answered,  this  is  all  that  Is  required,  and  if  after 
this  no  liability  Is  admitted,  he  cannot  be  charged.-'^  And 
though  an  ultimate  liability  may  be  shown,  subject  to  certain 
conditions,  the  judgment  cannot  ignore  such  conditions,  or 
give  the  attaching  creditor  other  or  superior  rights  to  those, 
which  the  defendant  had  in  his  o\m  behalf,  prior  to  garnish^ 
ment.  Thus,  where  the  answer  showed  a  contract  of  insurance, 
and  a  loss,  but  also  stated  that  the  loss  had  not  been  adjusted 
according  to  the  terms  of  the  contract,  the  creditor  could  not, 
on  the  face  of  the  answer,  obtain  a  valid  judgment,  ordering. 
an  immediate  adjustment,  or  payment  of  the  loss.^^ 

§  524.  Garnishees  of  Judgment  and  Execution  Debtors. — 
Hitherto,  the  principles  that  govern  the  process  of  garnish- 
ment, and  the  authorities  examined,  have  been  such  as  ap- 
plied indiscriminately  to  original  attachment  suits,  and  proceed- 
ings in  aid  of  prior  judgments  and  executions.     It  was  not 

isOrmsbee  v.  Davis,  5  R.  I.  442;  Kelly  u.  Bowman,  12  Pick.  383;  Brainard 
V.  Shannon,  GO  Me.  342;  Grain  v.  Gould,  4GI11.  293;  Graves  v.  Walker, 21  Pick. 
160;  Hart?;.  Dahlgreen,  IG  La.  559;  Keel  v.  Ogden.  5  Mon.  362;  Scales  i'.  Swan,. 
9  Port.  163;  Scott  v.  Bay,  18  Pick.  360;  Yason  v.  Clarke,  4  La.  An.  581;  Barker 
V.  Osborne,  71  Me.  69;  Parker  v.  Page,  38  Gal.  522;  Sebor  v.  Armstrong,  4  Mass. 
206.    For  particular  examples  of  evasive  answers,  see  ante,  §  377. 

13  Moses  «.  McMuUen,  4  Gold.  245;  Mayor  etc.  v.  Potomac  Ins.. Co.,  2  Baxt. 
296;  Shearer  v.  Handy,  22  Pick.  417;  Spears  v.  Chapman,  43  Mich.  541;  Jones. 
V.  Howell,  IG  Ala.  695. 

20  Katz  V.  Sonsby,  34  La  An.  588. 


§   524  JUDGMENT   IN   GARNISHMENT.  398 

deemed  expedient  to  treat  them  separately,  for  the  reason  that 
there  is  so  little  that  is  peculiar  to  the  process,  in  one  or  the 
other  of  these  forms  of  proceeding,  by  which  they  may  be  dis- 
tinguished. The  garnishment  after  judgment  is  mentioned 
here,  merely  because  it  is  subject  to  some  peculiarities  in  the 
manner  of  taking  judgment  in  the  proceeding  against  the  gar- 
nishee. When  the  judgment  is  that  of  a  foreign  Court,  the 
only  difference  is  that  the  plaintiff  is  under  no  necessity  of 
proving  his  original  demand,  but  may  proceed  as  in  ordinary 
actions  on  judgments,  to  establish  his  claim  against  the  princi- 
pal defendant  by  a  transcript,  duly  certified,  of  the  original 
record.  When  the  attachment  issues  on  a  domestic  judgment, 
where  the  action  is  maintainable  without  suing  on  the  judg- 
ment, the  proceedings  are  by  affidavit,  summons  in  garnish- 
ment, the  return  of  the  officer,  and  the  answer  of  the  gar- 
nishee. The  subsequent  proceedings  are  such  as  have  been 
already  described,  depending  upon  whether  the  answer  is  con- 
tested or  not;  but  the  original  judgment  forms  no  part  of  the 
record  in  the  proceeding  against  the  garnishee,  unless  made  so 
by  being  set  out  in  the  preliminary  papers,  or  is  incorporated 
in  the  bill  of  exceptions.^  When  an  execution  has  been  issued, 
it  may  or  may  not  become  a  part  of  the  record;  but  where  it 
is  authorized,  as  in  most  of  the  States,  the  answer  of  the  gar- 
nishee may  be  taken  by  the  officer  in  charge  of  the  writ,  or  he 
may  summon  the  supposed  debtor  of  the  defendant,  without 
any  affidavit,  or  other  initial  jiroceeding.  It  is,  in  fact,  one  of 
the  modes  of  levying  the  execution.  But  the  judgment  should 
be  made  to  appear,  in  some  manner,  where  its  existence  or 
validity  is  the  subject  of  contest  between  the  plaintiff  and  the 
garnishee.^  But  where  a  Justice  of  the  Peace,  in  a  return  to  a 
writ  of  certlorori,  sent  up  the  affidavit  made  before  him,  the 
summons,  the  answer,  and  the  judgment  thereon  against  the 
garnishee,  together  with  a  statement  of  the  original  judgment, 
it  was  held  prima  facie  sufficient,  and  if  the  party  objecting 
relied  on  other  proceedings,  it  was  incumbent  on  him  to  show 

1  Gunnr.  Howell,  27  Ala.  663  ;  Jackson?).  Shipman,  28  Ala.  488  ;  Chambers 
V.  Yarnell,  37  Ala.  400  ;  Gould  v.  Meyer,  36  Ala.  565. 

2  Alley  V.  Moore,  2  Tenn.  Cb.  206  ;  Faulks  v.  Heard,  31  Ala.  516  ;  Stickly  v. 
Little,  29  111.  315. 


399  JUDGMENT   IN   GARNISHMENT.  §   525 

them.^  In  any  case  where  the  statute  requires  the  prelimin- 
ary affidavit,  the  recital  in  the  writ  that  it  was  filed  is  not 
sufficient.* 

§  525.  Force  and  Effect  of  the  Judgment  against  Gar- 
nishee.— Taking  judgment  against  the  garnishee  either  autho- 
rizes the  issue  of  execution  against  him,  or  it  authorizes  the 
issue  of  a  scire  facias,  under  which  the  garnishee  may  appear 
and  show  cause,  if  any  there  be,  why  he  should  not  be  charged.^ 
In  some  of  the  States,  the  gai'nishee  receives  notice  of  a  motion 
for  execution,  which  he  may  appear  and  oppose.^  Where  the 
garnishee  appears  under  the  rule  to  show  cause,  he  stands  to 
some  extent  in  the  position  of  a  party  making  a  collateral  at- 
tack upon  a  judgment.  He  is  required  to  show:  (1)  If  the 
judgment  was  against  him  for  failure  to  answer,  a  good  excuse 
for  such  failure.^  He  would  probably  not  be  required  to  make 
as  strong  a  showing  as  though  the  judgment  were  final,  in  the 
sense  that  it  might  be  executed  without  further  procedure, 
which  we  shall  have  occasion  to  consider  further  on.*  But 
the  reasons  must  be  sufficient  to  warrant  the  Court  in  settino* 
aside  the  default,  for,  until  that  is  done,  no  answer  that  the 
garnishee  may  file,  or  offer  to  file,  will  be  considered.^  Mere 
ignorance  will  not  be  sufficient  excuse  for  failing  to  answer.^ 
There  is  a  certain  presumption  of  negligence  to  be  overcome, 
and  this  cannot  be  made  to  appear  by  showing  that  the  gar- 
nishee eri'ed  in  his  opinion  as  to  the  legal  obligation  resting 
upon  him,  by  reason  of  service  of  process.  If  the  trial  Court 
refuses  to  set  aside  the  default,  its  discretionary  action  will 
rarely  be  reviewed  by  the  Appellate  Court.'^  (2)  The  pai'ty 
summoned  must  show  a  meritorious  defense  to  the  proceeding.^ 

3  Gould  V.  Meyer,  36  Ala.  565. 
^  Hoffman  v.  Simon,  52  Miss.  302. 

1  See  Statutes;  Ware  v.  Bucks,  Port  R.  Co.,  69  Me.  97;  Dailey  v.  Coleman, 
122  Mass.  64. 

2  See  Statutes. 

3Fifielcl  V.  Wood,  9  Iowa,  249  ;  Smith  v.  Clarke,  9  Iowa,  241. 
^  Infra,  §  527. 

6  Fifield  V.  Wood,  9  Iowa,  249. 
"Freidenrich  v.  Moore,  24  Md.  293. 
''Supra,  §  522. 

8  Parmenter  v.  Childs,  12  Iowa,  22  ;  Fifield  v.  Wood,  9  Iowa,  249  ;  Smith  u, 
Clarke,  9  Iowa,  241. 


§    525  JUDGMENT   IN   GARNISHMENT.  400 

It  13  not  sufficient   to  show  mere  iiTegularities  or  amendable 
errors.^ 

When  the  judgment  has  been  rendered  against  the  garnishee, 
after  all  preliminary  questions  are  disposed  of,  and  he  has  en- 
joyed all  the  opportunity  afforded  by  the  law  to  be  heard  as 
to  his  liability,  it  binds  only  himself  and  the  parties  in  privity 
with  him,  or  who  are  parties  to  the  proceeding.  It  is  not  con- 
clusive upon  another  attaching  creditor  of  the  defendant. ^"^ 
Nor  will  it  be  conclusive  upon  the  defendant,  for  the  purpose 
of  fixing  the  extent  of  garnishee's  indebtedness,  as  otherwise 
the  garnishee,  by  admitting  an  amount  sufficient  to  satisfy 
plaintiff's  judgment  and  costs,  might  bar  a  subsequent  action 
by  his  creditor  for  an  amount  largely  in  excess  of  plaintiff's 
claim. ^^  For  obvious  reasons,  the  matter  having  been  litigated 
between  the  plaintiff  and  the  garnishee,  the  judgment  is  bind- 
ing upon  them.  But  by  taking  such  judgment,  the  plaintiff 
does  not  sacrifice  his  common  law  right  of  action  against  the 
defendant.  The  judgment  in  garnishment  does  not  operate  as 
a  merger  of  the  principal  judgment ;  hence,  the  plaintiff  may 
proceed  upon  either  or  both,  until  one  of  them  is  fully  satis- 
fied.i2 

It  is  held  in  Illinois,  that  the  judgment  against  the  gar- 
nishee should  be  in  the  name  of  the  defendant.^^  This  is  the 
effect  of  the  judgment,  in  any  case,  for  its  satisfaction  extin- 
guishes the  debt  to  the  defendant,  pro  tanto.  But  the  record 
generally  expresses  it  as  a  judgment  in  favor  of  the  plaintiff. 
In  Alabama,  it  is  held  that  where  a  judgment  debtor  is  gar- 
nished, the  affidavit  should  be  made  by  the  real  owner  of  the 
judgment ;  but  when  it  comes  to  the  entry  of  judgment  in  gar- 
nishment, it  must  stand  in  the  name  of  the  plaintiff  of  record, 
and  not  in  the  name  of  the  real  owner  of  the  judgment  in  re- 
spect to  which  the  summons  vras  served,  where  the  owner  and 
the  plaintiff  are  different  ^^ersons.^* 

9  Ibid. 

10  Wheeler  v.  Aldrich,  13  Gray,  51 ;  Tarns  v.  Bullitt,  35  Pa.  St.  308  ;  Bread- 
ing V.  Siegworth,  29  Pa.  St.  396  ;  Freeman  on  Judgment,  §  167. 

11  Barton  i\  Albright,  29  Ind.  489  ;  Groves  v.  Brown,  11  Mass.  334  ;  Brown  v. 
Dudley,  33  N.  H.  511. 

1- Price  V.  Higgins,  1  Litt.  273  ;  Freeman  on  Judgment,  §  228. 
1^  Chicago  etc.  R.  Co.  v.  Mason,  11  111.  App.  525. 
"  Jackson  v.  Shipman,  28  Ala.  488. 


401  JUDGMENT   IN   GARNISHMENT.  §  526 

§  526.  Judgment  against  Intervenor. — When  one  comes 
into  the  garnishment  proceeding  as  a  claimant  by  intervention, 
he  assumes  the  burden  of  proving  his  right  to  the  credits  or 
effects  attached,  and  to  entitle  him  to  judgment  must  prove 
vrhat  his  interest  is.^  If  he  claim  as  assignee,  and  the  assign- 
ment is  subsequent  to  the  garnishment,  of  tangible  effects,  or 
a  non-negotiable  chose  in  action,  he  is  bound  by  the  judgment 
against  the  garnishee,  whether  he  intervenes  or  not.^  So, 
where  a  judgment  debtor  was  garnished,  the  subsequent,  as- 
signment of  the  judgment  conferred  no  rights  on  the  assignee.^ 
The  proceeding  being  instituted  for  the  purpose  of  testing  gar- 
nishee's liability  to  defendant,  in  order  to  determine  whether 
the  plaintiff  may  have  such  liability  applied  in  satisfaction  of 
his  demand  against  the  principal  defendant,  intervention  by  an 
adverse  claimant  gives  the  latter  no  right  to  object  to  a  disso- 
lution of  the  attachment,  and  discharge  of  the  garnishee. 
When  for  any  reason  this  result  follows,  the  Court  will  not 
proceed  with  the  case  In  order  to  adjudicate  the  claimant's 
rights  to  the  subject  of  controversy.* 

§  527.  Collateral  Attack  on  the  Judgment  in  Garnishment. 
— The  judgment  In  garnishment  stands  upon  substantially  the 
same  grounds  as  a  final  determination  of  the  rights  of  the  par- 
ties thereto  and  their  privies,  as  any  other  judgment  of  a  Court 
of  competent  jurisdiction.  We  have  already  seen  that  such 
judgments  may  be  impeached  by  a  direct  proceeding  for  that 
purpose,  and  under  peculiar  circumstances  may  be  collaterally 
impeached.^  The  only  disadvantage  under  which  a  judgment 
of  this  kind  stands,  as  compared  to  ordinary  adjudications,  is 
the  double  proceeding  which  is  necessary  to  Its  rendition,  and 
the  added  chances  of  failure  of  jurisdiction.  If  the  principal 
judgment  should  be  void  for  want  of  jurisdiction,  it  will  prove 
as  fatal  to  the  auxiliary  judgment  as  though  jurisdiction  were 
wanting  in  the  garnishment  proceeding.  But  mere  Irregulari- 
ties will  not  leave  the  one  judgment  open  to  impeachment  col- 

1  Donnelly  v.  O'Connor,  22  Minn.  309. 

2  Burton  V.  District  Township,  11  Iowa,  166. 

*  Phillips  V.  Gorman,  43  Iowa,  101. 

*  Peck  V.  Stratton,  118  Mass.  406;  Blume  v.  Gilbert,  124  Mass.  215;  Clark  v. 
Gardner,  128  Mass.  358. 

1  Ante,  §  46. 

II.  Attach.— 26. 


§   527  JUDGMENT   IX   GARNISHMENT.  402 

laterally,  more  than  tlie  otlier.^  Where  a  Justice  of  the 
Peace  obtained  jurisdiction  in  foreign  attachment,  and  goods 
■were  sold  on  execution  under  tlie  judgment  rendered  by  him, 
it  was  held  that  the  defendants  could  not,  in  an  action  of  tro- 
ver for  the  goods,  object  to  irregularities  in  the  return  of  sum- 
mons, nor  to  mere  irregularities  in  the  judgment.^  So,  mere 
informalities  will  not  justify  a  collateral  attack  by  one  who 
claims  as  assignee.* 

When  a  Court  of  law  is  unable  to  relieve  a  garnishee,  who 
by  fraud,  accident  or  mistake  has  been  prevented  from  answer- 
ing, or  making  his  defense  to  the  proceeding,  a  Court  of  equi- 
ty will  grant  relief.^  But  such  relief  will  not  be  granted  when 
the  failure  to  answer  is  caused  by  the  negligence  or  careless- 
ness of  the  garnishee  or  his  agent.*^  Thus,  a  banking  company 
was  summoned  as  garnishee,  and  the  cashier  advised  with  the 
attorney  who  was  retained  generally  in  its  business,  as  to 
what  should  be  done,  and  was  told  to  make  an  affidavit.  But 
the  attorney  was  not  requested  to  attend  to  the  matter,  nor  did 
the  officer  signify  any  intention  that  he  should  do  so  by  leav- 
ing with  him  the  copy  of  the  writ,  nor  by  informing  him  what 
he  had  to  disclose.  The  cashier,  whose  duty  it  was  to  make 
the  answer,  knew  before  the  day  for  answering  arrived  that 
the  attorney  was  acting  for  the  plaintiff,  and  still  nothing 
further  was  done.  Under  these  circumstances,  it  was  held 
that  the  garnishee  had  no  right  to  expect  that  the  attorney 
consulted  would  attend  to  the  matter,  and  as  the  omission 
was  clearly  negligent,  the  Court  would  grant  no  relief  from 
the  judgment.^  So,  wdiere  the  garnishee's  indebtedness  to 
<lefendant  was  assigned  prior  to  garnishment,  of  Avhich 
he  had  notice  in  time  to  resist  the  judgment  in  garnish- 
ment, the  Court  refused  to  enjoin  the  enforcement  of  such 
judgment,  although  the  assignee  had  recovered  judgment 
against  the  garnishee  for  the  same  demand ;  but  left  him  to 
pay  both  judgments.* 

2  Barry  v.  Hogan,  110  Mass.  209. 

8  McDonald  v.  Simcox,  93  Pa.  St.  619. 

■*  Burton  v.  District  Towusliip,  11  Iowa,  166. 

5  Rhode  Island  Exchange  Bank  v.  Hawkins,  6  E.  1. 198. 

6  See  Windwart  v.  Allen,  13  Md.  19(i ;  Willet  v.  Price,  32  Ga.  115. 
"  Bhode  Island  etc.  Bank  r.  Hawkins,  G  B.  I.  198. 

8  Field  V.  McKinney,  CO  Miss.  763. 


403  JUDGMENT   IN   GARNISHMENT.  §   527 

Courts  of  equity  are  disposed  to  relieve  garnishees  against 
the  consequences  of  mistake  ;  but  it  is  the  mistake  of  the  vigi- 
lant only,  in  cases  free  from  fraud,  that  call  for  the  exercise  of 
this  jurisdiction.  Hence,  where  the  failure  to  answer  was  an 
unauthorized  and  unwai'ranted  presumption,  from  circumstan- 
ces that  the  plaintiff's  attorney  had  waived  the  sworn  answer 
before  judgment,  the  Court  would  not  relieve  the  garnishee,  by 
interfering  with  the  statutory  proceeding  in  which  he  was  de- 
nied the  privilege  of  answering  after  judgment.  And  havlno- 
based  his  prayer  for  such  i-elief  upon  the  ground  of  an  explicit 
agreement  with  the  attachment  creditor,  through  the  latter's 
attorney,  in  violation  of  which  he  was  refused  the  right  to 
make  the  affidavit  after  judgment,  the  complainant  was  not 
allowed,  upon  failure  to  jirove  such  agreement,  to  have  relief 
upon  the  ground  of  mistake  In  supposing  from  circumstances 
that  such  understanding  existed  between  him  and  the  attorney 
for  respondent,  nor  upon  the  ground  that  such  mistake  was  in- 
duced by  the  conduct  of  such  attorneys.  In  acting  In  the  double 
capacity  of  attorneys  for  the  creditor,  and  advisors  of  the  Gar- 
nishee.^ To  entitle  a  party  to  relief  in  equity  against  a  judg- 
ment at  law,  when  his  defense  could  have  been  made  In  the 
original  action,  two  things  are  essential :  (1)  That  his  failure 
to  make  the  defense  was  not  attributable  to  his  own  ne<zli"'ent 
omission  ;  and  (2)  That  he  has  a  good  defense  to  the  entire 
cause  of  action,  or  to  such  part  thei'cof  as  he  asks  to  be  re- 
lieved from.  The  application  of  the  first  of  these  requisites  to 
the  judgment  In  garnishment  has  already  been  exemplified. 
As  to  the  second,  it  Is  sufficient  to  observe  that  when  a  srar- 
nisliee  comes  Into  equity  for  relief,  he  must  show  by  his  bill,  not 
only  that  he  is  not  indebted  to  the  principal  defendant,  or  not 
indebted  to  the  extent  to  which  he  is  charged,  but  also  that  he 
has  no  attachable  effects  in  his  hands  which  belono;  to  defen- 
dant.  Unless  the  case  made  both  by  allegation  and  proof  pre- 
sents both  these  grounds  satisfactorily  to  the  Court,  relief  will 
be  denied.^''  Mere  Irregularity  In  the  service  of  summons  on 
the  garnishee,  where  he  was  actually  served,  is  no  ground  for 
relief  from  the  judgment.     Thus,  where  he  was  a  member  of 

9  Atlantic  Fire  etc.  Co.  v.  'Wilson,  5  R.  I.  479. 
10  Hair  v.  Lowe,  19  Ala.  224  ;  Abell  v.  Simon,  49  Md.  318. 


§   528  JUDGMENT   IN   GAENISHMENT.  404 

the  city  council,  and  when  served  was  in  actual  discharge  of 
his  duties  as  such,  this  was  held  insufficient  to  render  the  ser- 
vice void,  and  hence  the  Court  would  not  interfere  by  injunc- 
tion to  restrain  the  execution  of  final  process  under  the  judg- 
ment.^^ 

§  528.  Judgment  Discharging  the  Garnishee. — We  have 
seen  that  it  is  questioned  in  some  jurisdictions  whether  judg- 
ment may  be  entered  in  favor  of  the  garnishee,  when  the 
plaintiff  fails  to  show  that  he  is  chargable,^  and  in  others  the 
authority  to  enter  such  judgment  is  flatly  denied.^  When  is- 
sue is  taken  on  either  the  law  or  the  facts  of  the  answer,  how- 
ever, and  the  court  or  jury  decides  in  favor  of  the  garnishee, 
it  amounts  to  a  judgment  that  the  garnishee  is  not  indebted  to 
the  defendant,  or  had  no  attachable  effects  of  defendant  in  his 
possession  when  the  writ  was  served,  or  the  answer  filed. 
This,  however,  is  a  contest  between  plaintiff  and  the  garnishee, 
and  as  to  them  only  can  it  be  said  to  be  res  judicata.  It  does 
not  prevent  the  defendant  in  attachment,  nor  his  assignee,  from 
bringing  a  subsequent  action  for  the  recovery  of  the  same  de- 
mand, or  to  regain  possession  or  control  of  the  specific  chattels 
in  respect  to  which  the  successful  litigant  was  garnished.^ 
Nor  is  it  binding  upon  other  creditors,  to  prevent  them  from 
causing  the  garnishee  to  be  summoned  in  respect  to  the  same 
debt  or  property.*  The  plaintiff  in  attachment,  who  causes 
the  party  to  be  summoned,  however,  is  bound  by  the  judg- 
ment in  that  case  discharging  him.  And  he  cannot,  either  di- 
rectly or  indirectly,  raise  the  same  issues  with  the  same  party, 
after  they  have  been  once  judicially  determined.  It  was  so 
held,  where  the  ground  upon  which  the  plaintiff  attacked  the 
judgment  was,  that  the  garnishee  had  by  false  swearing  and 
other  tortious  acts  deprived  plaintiff  of  his  remedy  by  attach- 
ment.    The  relief  asked  was  for  a  tortious  injury  inflicted  up- 

"  Peters  v.  League,  13  Md.  58  ;  Abell  v.  Simon,  49  Md.  318. 
'^  Supra,  §523. 

2  Hes3  V.  Shorb,  7  Pa.  St.  231 ;  Moore  v.  Moore,  12  Phila.  173.  The  garnish- 
ment may  be  effectually  dissolved  by  agreement  between  the  parties,  and 
payment  of  the  money  to  an  attorney,  and  cannot  be  revived  by  the  attor- 
ney's failure  to  pay. — Platen  v.  Eyck,  5D  Ga.  245. 

3  Puffer  V.  Graves,  26  N.  H.  258  ;  Baxter  v.  Vincent,  6  Vt.  614  ;  Robeson  v. 
Carpenter,  7  Mart.,  N.  S.,  30. 

< Breading  v.  Siegsworth,  29  Pa.  St.  396  ;  Spruill  v.  Trader,  5  Jones,  39. 


405  JUDGMENT   IN   GARNISHMENT.  §   528 

on  plaintiff,  by  means  of  the  false  and  fraudulent  answers  in 
garnishmenM:,  through  which  it  was  made  to  appear  that  the 
defendant  (former  garnishee)  was  not  indebted  to  the  defen- 
dant in  attachment,  when  in  truth  and  in  fact  he  was  so  in- 
debted, and  consequently  liable  in  the  proceeding  from  which 
he  haKl  been  discharged.  The  manifest  reason  why  such  an 
action  could  not  be  maintained  was,  that  it  required  a  reexam- 
ination and  re-adjudication  of  the  same  facts  that  were  in  con- 
troversy in  the  former  action,  and  if  permitted,  there  could  be 
no  such  thing  as  finality  in  the  judgments  of  Courts.^  AVhen 
the  judgment  is  In  favor  of  the  garnishee,  whether  it  be  in  the 
trial,  or  In  the  appellate  Court,  he  is  entitled  to  his  costs.^ 
He  Is  also  allowed  in  some  jurisdictions  compensation  for  his 
services  and  expenses  in  taking  care  of  the  property  in  his 
hands.  In  making  sales  which  are  advantageous  to  the  attach- 
ing creditor ;  for  collecting  sums  due  the  principal  defendant, 
and  for  the  care  and  custody  of  the  funds  J  But  the  rulings 
are  not  uniform  as  to  how  these  costs  and  expenses  are  to  be 
paid,  nor  as  to  the  extent  to  which  allowances  shall  be  made 
to  the  garnishee.  Much  depends  upon  the  circumstances  of 
each  case,  and  by  what  means  the  expenses  are  incurred. 
The  counsel  fees  of  the  garnishee  would  seem  to  be  a  legiti- 
mate item  of  expense  for  which  he  should  be  reimbursed, 
whether  he  be  charged  or  not ;  but  it  is  not  allowed  In  every 
case.^  Where  the  garnishees  made  no  resistance,  but  an- 
swered, disclosing  an  assignee  of  the  indebtedness  in  respect 
to  which  they  were  garnished,  it  was  held  error  to  order  the 
costs  to  be  paid  by  the  plaintiff,  instead  of  out  of  the  fund 
which  was  paid  Into  Court.^  Where  one  was  charged  as  gar- 
nishee below,  and  on  appeal  was  held  liable  in  the  appellate 
Court,  It  was  decided  that  he  was  not  entitled  to  the  costs  of 
appeal.^*' 

SLyford  v.  Demerritt,  32  K.  H,  234. 

6Lorman  v.  Phoenix  Ins.  Co.,  33  Mich.  65.  See  Hazzard  v.  Franklin,  2  Ala. 
(N.  S.)  349  ;  Gracy  v.  Coates,  2  McCord,  224. 

7  Brown  v.  Silsby,  10  N.  H.  521. 

8  Brown  v.  Silsby,  10  N.  H.  521. 

9  Baker  v.  Lancashire  Ins.  Co.,  52  "Wis.  193. 

10  Ball  V.  Gilbert,  12  Mete.  397.  It  is  also  held  that  it  is  too  late  after  appeal 
to  raise  objections  to  the  issues  taken  on  the  garnishee's  answer. — Chase  v. 
Foster,  9  Iowa,  429. 


CHAPTER  XLTV. 

EXTENT   OF     GARNISHEE'S   LIABILITY. 

§  529.    Limitations  to  the  liability  fixed  by  tbe-amount  n  garnishee's  bands. 
§  530.     Garnishee's  liability  for  costs. 
§531.    Garnishee's  liability  for  interest. 

§  532.    The  liability  of  garnishee  limited  by  the  amount  of  the  principal  judg- 
ment. 

§  529.  Limitations  to  the  Liability  fixed  by  the  amount  in 
the  Garnishee's  hands. — The  riorlits  to  which  the  o-amishment 
subrogates  the  plaintiff  in  attachment  being  those  of  the  de- 
fendant, it  follows  that  the  judgment  against  the  garnishee 
cannot  exceed  the  amount  of  the  latter's  indebtedness,  or  the 
value  of  the  property  in  his  possession  or  under  his  control, 
except  where  this  amount  is  enhanced  by  costs  and  interest.^ 
Where  neither  of  these  extra  burdens  is  imposed,  he  may  satis- 
fy the  judgment  out  of  the  money  or  property  attached.^ 
Where  the  statute  is  so  construed  as  to  render  the  garnishee 
liable  for  money  or  property  coming  to  his  hands  after  ser- 
vice,^ his  liability  may  be  enhanced  but  not  diminished,  by  his 
conduct  in  the  care  and  custody  of  the  property  or  money. 
Thus,  if  he  should  sell  the  property  on  credit,  or  loan  the  mon- 
ey pending  the  litigation,  he  will  still  be  liable  as  though  it 
were  in  his  possession.  So,  he  is  chargable  for  accumulations 
by  way  of  interest  on  loans.^  It  is  clear  that  the  party  sum- 
moned can  do  nothing  thereafter  to  change  his  relation  to  the 
principal  defendant,  or  diminish  his  indebtedness,  except  what 
is  done  in  pursuance  of  previous  contracts.      He  may  sever  his 

1  Ante,  §  403. 

2  Wilcox  V.  Mills,  4  Mass.  218  ;  Meacham  v.  McCorbitt,  2  Mete.  (Mass.)  352  ; 
Allen  V.  Hall,  5  Mete.  (Mass.)  263  ;  Pert  v.  Whitmore,  16  La.  An.  48  ;  Coble  v. 
Nouemaker,  78  Pa.  St.  501  ;  Woodhouse  v.  Commonwealth  Ins.  Co.,  54  Pa.  St. 
307  ;  Roby  v.  Labuzan,  21  Ala.  60. 

3  Edgerly  v.  Sanborn,  6  N.  H.  387  ;  NeweU  v.  Terris,  16  Vt.  135  ;  Sheets  v. 
Hobensack,  20  Pa.  St.  412. 

4  Brown  v.  SUsby,  10  N.  H.  521. 


407  EXTENT   OP   garnishee's   LIABILITY.  §    530 

connection  with  the  case,  by  filing  his  answer  and  paying  his 
money  into  Court,  so  that  whatever  costs  accrue  must  be  paid 
by  the  party  to  whom  the  principal  judgment  is  adverse.  The 
garnishee  with  such  payment,  when  duly  authorized,  is  re- 
leased from  all  responsibility,  and  loses  all  control  of  the  sub- 
sequent conduct  of  the  proceeding.^ 

§  530.  Garnishee's  Liability  for  Costs.— There  is  hardly 
any  principle  that  may  be  expressed  in  general  terms  that  will 
actually  define  the  limitations  to  garnishee's  liability  for  costs. 
The  most  that  can  be  stated  with  confidence  is,  that  he  will  be 
liable  for  costs  incurred  by  reason  of  his  vexatious  resistance 
of  the  proceeding  ;  ^  and  that  he  will  riot  be  held  liable  when 
he  answers  promptly,  makes  no  resistance,  and  obeys  the  or- 
ders of  the  Court  ;^  as  well  as  when  the  judgment  is  in  his 
favor.^  But  these  two  statements  only  give  incidents  of  the 
garnishment  proceeding,  which  serve  to  illustrate  the  ex- 
tremes of  liability  and  non-liability,  examples  of  which  are 
probably  more  rare  than  instances  that  fall  between  the  two. 
The  cases  in  which  the  garnishee  is  charged  with  costs,  are 
not  all  embraced  in  the  class  that  may  fairly  be  called  vexa- 
tious contentions.  He  has  been  held  liable  where  he  denied 
indebtedness  or  put  in  a  defense,  and  an  issue  was  formed  to 
try  facts  in  controversy.  In  such  cases  he  has  been  treated  as 
any  other  failing  litigant.^  But  it  must  be  remembered  that 
the  garnishee  may  be  forced  into  a  position  where  he  is  re- 
quired to  defend  the  principal  action  ;  or,  at  least,  see  that  the 
Court  has  acquired  complete  jurisdiction  of  the  parties,  and 
the  property  or  debt  in  controversy,  when  it  is  a  matter  of  In- 
difference to  him  whether  he  pays  his  debt,  or  delivers  the 
property  in  his  possession  to  the  principal  defendant,  or  sur- 
renders it  to  be  applied  on  plaintiff's  judgment.^     In  consider- 

6  Lewis  V.  Sheffield,  1  Ala.  134. 

1  Randolph  v.  Heaslip,  11  Iowa,  37. 

2Xewlin  v.  Scott,  26  Pa.  St.  102  ;  Gracy  v.  Coates,  2  McCord,  224  ;  Prout  w.. 
Grout,  72  111.  45G  ;  Walker  v.  Wallace,  2  Dall.  113  ;  Hurlburt  v.  Hicks,  17  Vti 
193  ;  Bullard  v.  Hicks,  17  Vt.  198  ;  Tupper  v.  Corsell,  45  Miss.  352  ;  Johnson-u. 
Delbridge,  35  Mich.  436. 

SLorman  v.  Phcenix  Ins.  Co.,  33  Mich.  65. 

< Thompson  I!.  Allen,  4  Stew.  &  P.  184;  Herring  t;.  Johnson,  5  Phila.  443, 
See  Newlin  v.  Scott,  26  Pa.  St.  102. 

6^n<e,  Ch.  XXIX. 


§    531  EXTENT   OF   GARNISHEE'S   LIABILITY.  408 

ation  of  this  circumstance,  the  Courts  Avill,  in  general,  be  found 
unwilling  to  discriminate  nicely,  or  draw  the  lines  with  rigor- 
ous exactitude  against  garnishee,  in  the  matter  of  costs,  par- 
ticulax'ly  where  the  fund  in  his  hands  is  sufficient  to  satisfy 
the  judgment.^  When  this  is  the  case,  the  amount  for  which 
judgment  is  rendered  is  a  matter  of  small  concern  to  the  gar- 
nishee, provided  it  does  not  exceed  the  measure  of  his  original 
liability.  It  is  only  after  this  has  been  absorbed  by  plaintiff's 
principal  judgment,  that  it  becomes  important  to  the  garnishee 
what  costs  are  taxed  against  him  in  the  judgment,  provided 
they  are  not  so  assessed  that  they  cannot  be  paid  from  the 
fund  attached. 

§  531.  Garnishee's  Liability  for  Interest. — It  is,  in  some 
•cases,  a  problem  of  anything  but  easy  solution,  whether  the 
garnishee  shall  be  charged  with  interest  on  the  fund  in  his 
hands,  and  if  he  is  so  charged,  for  what  time.  Where  the 
debt  bears  interest  by  express  contract  between  the  contracting 
parties,  there  can  be  no  doubt  but  that  interest  up  to  maturity 
is  recoverable.^  So,  where  the  party  derives  any  direct  bene- 
fit from  the  use  of  the  money  after  maturity,  as  where  he  puts 
it  out  at  interest,  or  the  like,  he  would  be  held  answerable  for 
the  amount  so  realized.^  Not  so,  however,  where  the  money 
is  paid  over  at  maturity  of  the  demand,  and  there  is  no  con- 
tract for  interest  between  the  principal  parties  to  the  credit, 
whether  the  debtor  was  benefited  by  the  use  of  the  money  or 
not.  Indeed,  the  garnishee  can  only  be  charged  Avith  interest 
•when  it  could  have  been  recovered  by  the  principal  defendant.^ 
It  is  a  reasonable  rule,  that  where  the  garnishee  is  in  posses- 
sion of  a  specific  fund  or  sum  of  money,  which  is  due  and  pay- 
able to  defendant,  and  by  reason  of  the  garnishment  he  is  en- 
abled to  retain  it  in  his  possession,  and  derive  a  direct  profit 
from  it,  that  this  should  be  added  to  the  debt.^     It  is  also  rea- 

6  Wilcox  V.  Mills,  4  Mass.  218. 

1  Bickford  v.  Rice,  105  Mass.  340  ;  Huntress  v.  Burbank,  111  Mass.  213  ;  Nor- 
Tis  V.  R.  M  F.  Ins.  Co.,  25  N.  H.  22  ;  Somerset  M.  Co.  v.  Partridge,  25  N.  H.  369. 

^  Blodgett  V.  Gardiner,  45  Me.  542  ;  WOling  v.  Consequa,  Peters  C.  C.  301 ; 
Brown  v.  Silsby,  10  N.  H.  521. 

8  Lyman  v.  Orr,  2G  Yt.  119  ;  Quigg  v.  Kittredge,  18  K  H.  137;  Adams  v.  Cor. 
dis,  8  Pick.  260  ;  Mackey  v.  Hodgson,  9  Pa.  St.  468  ;  Moore  v.  Lowrey,  25  Iowa, 
336  ;  Clark  v.  Powell,  17  La.  An.  177. 

*  Mattingly  v.  Boyd,  20  How.  128  ;  Brown  v.  Silsby,  10  N.  H.521. 


409  EXTENT   OF   GARNISHEE'S   LIABILITY.  §    531 

sonable  that  the  garnishee  should  be  charged  with  interest  on 
the  judgment  against  him,  uwier  the  same  terms  and  subject 
to  the  same  conditions  that  interest  accrues  on  judgments  gen- 
erally. Or  where  the  payment  of  the  sum  found  to  be  due 
from  the  garnishee  is  deferred  by  his  captious  resistance  to 
the  proceeding,  he  may  justly  be  charged  with  interest  by 
way  of  damages  for  the  unreasonable  delay .^  But  where  the 
interest  is  charged  on  account  of  the  beneficial  use  of  the  mon- 
ey  to  the  garnishee,  and  not  because  of  his  willful  obstruction 
of  process,  the  fact  of  such  use,  where  the  money  is  anything 
else  than  a  special  deposit,  must  be  extremely  difficult  of  proof, 
for  the  reason  that  the  presumption  is  that  the  money  was 
held  ready  to  be  paid  when  due  to  the  party  entitled  thereto.* 
When  the  liability  of  the  garnishee  is  represented  by  an  or- 
dinary indebtedness,  it  would  be  an  extraordinary  rule  that 
required  the  debtor,  when  prevented  by  legal  process  from 
paying  the  debt,  in  order  to  avoid  the  payment  of  interest, 
to  set  aside  the  amount  of  his  indebtedness,  and  hold  it  spe- 
cifically as  subject  to  the  order  of  the  Court.'^  If  the  money 
attached  be  a  special  deposit,  or  it  can  be  ascertained  to  be  the 
money  of  the  creditor,  there  is  reason  in  the  rule  that  renders 
the  garnishee  liable  for  interest  when  he  mingles  it  with  mon- 
ey of  his  own,  which  he  holds  for  general  use,  without  going 
into  an  inquiry  whether  it  was  used  or  not.^  In  some  of  the 
States  it  is  decided,  that  the  mere  fact  that  the  money  is  not 
set  aside,  or  held  subject  to  the  litigation,  is  sufficient  to  make 
the  garnishee  liable  for  interest.^  And  in  Virginia  the  fact 
that  the  garnishee  keeps  the  money  in  his  hands  pending  the 
litigation,  instead  of  paying  it  into  Court  as  he  might  do, 
raises  the  presumption  that  he  retains  it  for  use,  and  for  this 
reason  he  is  charged  with  interest.^*'     So,  when  the  garnishee 

6  Eushton  V.  Rowe,  64  Pa.  St.  468  ;  Jackson's  Ex'rs  ?;.  Lloyd,  44  Pa.  St.  82  ; 
Norris  v.  Hall,  18  Me.  332  ;  Thompson  v.  Allen,  4  Stew.  &  P.  184  ;  Updegraff 
V.  Spring,  11  Serg.  &  E.  188  ;  Irwin  v.  Pittsburgh  etc.  R.  Co.,  43  Pa.  St.  488  ; 
Alleghany  Savings  Bank  v.  Meyer,  59  Pa.  St.  361 ;  Adams  v.  Cordis,  8  Pick. 
260. 

6  Blodgett  V.  Gardiner,  45  Me.  542  ;  Adams  v.  Cordis,  8  Pick.  260. 

1  Fitzgerald  v.  Caldwell,  2  Dall.  215  ;  Weber  v.  Carter,  1  Phila.  221. 

*  Woodruff  V.  Bacon,  35  Conn.  97. 

»  Georgia  Ins.  etc.  Co.  v.  Oliver,  1  Ga.  38.  See  Candee  v.  Skinner,  40  Conn. 
164. 

"  Ross  V.  Austin,  4  Hen.  &  Munf .  502 ;  Tazewell  v.  Barret,  4  Hen.  &  Munf . 


§    531  EXTENT    OF    GARNISHEE'S    LIABILITY.  410 

denies  his  indebtedness,  and  upon  such  denial  resists  payment, 
such  denial  is  lield  to  be  inconsistent  with  the  jDresumption 
that  there  Is  any  readiness  on  the  part  of  the  debtor  to  pay 
either  to  his  creditor  or  the  attachment  plaintiff.^^ 

The  simplest  form  the  proposition  can  take  is,  to  require  the 
garnisliee  to  cither  pay  the  money  into  Court,  or  stand  charg- 
able  for  interest ;  but  this  would  only  be  a  reasonable  require- 
ment where,  in  case  of  such  payment,  he  was  unconditionally 
discharged.  The  cases  cited  are  decided,  each  according  to 
its  own  peculiar  circumstances.  The  only  clear  case  of  ex- 
emption from  interest  seems  to  be  where  the  garnishee  does 
not  appear  as  a  litigant,  or  where  the  money  is  actually  set 
aside  to  await  the  result  of  the  contest,^^  or  is  paid  into  Court. ^^ 
It  is  doubtful,  however,  whether  interest  could  be  charged 
where  the  contest  was  between  the  plaintiff  and  an  interven- 
ing claimant,  or  grew  out  of  a  question  as  to  the  jurisdiction 
acquired  in  the  principal  case,  and  the  garnishee  contended 
no  farther  than  was  necessary  for  his  own  security,  provided 
that  in  the  mean  time  he  stood  ready  at  all  times  to  satisfy 
any  judgment  that  might  be  rendered  against  hlm.^^  So,  if  the 
controversy  were  in  regard  to  the  amount  for  which  he  was 
liable,  and  the  judgment  should  be  for  no  more  than  he  was 
at  all  times  ready  and  willing  to  pay,  it  is  difficult  to  see  how 
the  contention  on  his  part  could  do  away  with  the  presump- 
tions in  his  favor. 

When  interest  is  claimed  by  defendant  in  attachment,  in  lils 
direct  action  against  his  debtor,  who  has  been  prevented  from 
paying  the  debt  by  process  of  garnishment,  the  claim  may  be 
met  by  a  defense  founded  on  the  same  principles  that  apply 
to  the  question  of  interest,  as  it  affects  the  judgment  in  gar- 
nishment.-^^ 

259  ;  Templeman  v.  Fauntleroy,  3  Eand.  434  ;  Williams  v.  A.  &  K.  R.  Co.,  36 
Me.  201. 

11  Stevens  v.  Gwatlimey,  9  Mo.  636  ;  Georgia  etc.  Co.  v.  Oliver,  1  Ga.  38.  See 
Chase  v.  Manhardt,  1  Bland.  333  ;  Moore  v.  Lowrey,  25  Iowa,  336  ;  Candee  v. 
Webster,  9  Ohio  St.  452. 

1-  Candee  v.  Webster,  9  Ohio  St.  452  ;  Chase  v.  Manhardt,  1  Bland.  333.  See 
Smith  V.  Stearns,  19  Pick.  20. 

13  Tazewell  w.  Barrett,  4  Hen.  &  Munf.  259;  Templeman  v,  Fauntleroy,  3 
Eand.  434. 

14  Cohen  v.  P.  Ins.  Co.,  11  Mo.  374. 

15  UpdegrafE  v.  Spring,  11  Serg.  &  R.  188.    See  Little  v.  Owen,  36  Ga.  20. 


411  EXTENT   OF   GARNISHEE'S   LIABILITY.  §   532 

§  532.  The  Liability  of  Garnishee  Limited  by  the  Amount 
of  the  Principal  Judgment. — In  considering  the  liabilit}'  of  the 
party  summoned  as  garnishee,  we  always  have  in  view  his  lia- 
bility in  garnishment.  The  amount  of  liis  indebtedness  to  the 
principal  defendant  need  only  be  exactly  determined  for  this 
jiurjiose,  when  it  is  less  than  the  amount  of  the  judgment 
against  the  principal  defendant.  The  extent  of  his  liability  as 
garnishee,  is  the  amount  for  which  judgment  may  be  rendered 
against  him  in  that  capacity.  This  cannot  exceed  the  amount 
of  plaintiff's  recovery  in  the  principal  action,  including  costs, ^ 
and  this  only  when  the  amount  of  such  recovery  is  still  unsat- 
isfied when  the  judgment  in  garnishment  is  rendered.^  The 
judgment  is  only  in  effect  that  the  indebtedness  of  gar- 
nishee to  the  defendant  shall  be  applied  In  satisfaction  of  the 
indebtedness  of  defendant  to  plaintiff ;  and  hence,  when  this 
indebtedness  is  satisfied,  in  whole  or  in  part,  at  the  time  judg- 
ment is  demanded  by  the  plaintiff  against  the  garnishee,  it 
will  be  refused  or  granted  only  to  the  extent  of  the  defendant's 
liability  remaining  unsatisfied.^  The  rule  is  quite  general,  that 
the  attachment  plaintiff's  judgment  in  the  principal  action 
measures  the  extent  of  the  judgment  against  the  garnishee.* 
But  this  is  true,  only  for  the  reason  that  no  one  but  the  plain- 
tiff in  that  particular  case  has  any  interest  in  such  judgment. 
Where,  however,  the  law  provides  for  a  judgment  that  shall 
be  a  final  determination  of  the  claim  of  defendant  against  his 
debtor,  and  allows  other  judgment  and  attachment  creditors 
to  participate,  it  is  held  that  judgment  shall  be  entered  in  fa- 
vor of  the  principal  defendant,  for  the  whole  amount  of  gar- 
nishee's indebtedness,  whether  the  plaintiff's  claim  be  for  more 
or  less.^ 

1  Tyler  v.  Winslow,  46  Me.  348  ;  Timmons  v.  Johnson,  15  loTva,  231  ;  Sick- 
man  V.  Lapsley,  13  S.  &  R.  224  ;  Daily  v.  Jordan,  2  Cusb.  390. 

2  Thompson  v.  Wallace,  3  Ala.  132. 

8  Price  V.  Higgins,  1  Littell,  274  ;  Spring  v.  Ayer,  25  Vt.  516  ;  Hinckle  v.  Cur- 
rin,  1  Humph.  74 ;  Gleason  v.  Gage,  2  Allen,  410  ;  Howard  v.  Crawford,  21 
Tex.  399  ;  Baldwin  v.  Morrill,  8  Humph.  74  ;  Riddle  v.  Etting,  32  Pa.  St.  412. 

*  Doggett  V.  St  Louis  etc.  Ins,  Co.,  19  Mo.  201 ;  Hitchcock  v.  Watson,  18  111. 
289. 

5  Webster  v.  Steele,  75  111.  544  ;  Stahl  v.  Webster,  11  111.  511.  See  Hitchcock 
V.  Watson,  18  III.  289. 


STATUTES 


COTHCERmSCt 


Attachment  and  Garnishment. 


(<U) 


STATUTORY  CONTENTS. 


Paqb 

United  States 417 

Alabama < 419 

Arizona 429 

Arkansas 432 

California 442 

Colorado 445 

Connecticut 454 

Dakota 461 

Delaware 465 

Florida 469 

Georgia 478 

Idaho 490 

Illinois 494 

Indiana 510 

Iowa 515 

Kansas 522 

Kentucky 527 

Louisiana 536 

Maine 540 

Maryland 546 

Massachusetts 551 

Michigan 561 

Minnesota 574 

Mississippi 581 

Missouri 500 

Montana 602 

Nebraska 606 

Nevada 612 

New  Hampshire 615 

New  Jersey 620 

New  Mexico 629 

New  York 634 

North  Carolina 644 

Ohio 649 

Oregon 6r)5 

Pennsylvania 658 

Rhode  Island —  670 

Sooth  Carolina 677 

Tennessee 681 

Texas 687 

Utah 694 

VlliGINIA 698 

Washington 703 

West  Virginia 706 

Wisconsin 712 

Wyoming 720 

(  415  ) 


STATUTES 


KELATING-TO 


Attachment  and  Garnishment. 


UNITED  STATES. 

[Revised  Statutes.] 


REMOVAL  FROM  STATE  COURT. 

§  G46. — When  a  suit  is  removed  for  trial  from  a  state  court  to  a  circuit  court,  as 
provided  in  the  foregoing  sections,  any  attachment  of  the  goods  or  estate  of  the 
defendant  by  the  original  process  shall  hold  the  same  to  answer  the  final  judgment, 
in  the  same  manner  as  by  the  laws  of  such  state  they  would  have  been  held  to 
answer  final  judgment  had  it  been  rendered  by  the  court  in  which  the  suit  was 
commenced;  and  any  injunction  granted  before  the  removal  of  the  cause  against 
the  defendant  applying  for  its  removal  shall  continue  in  force  until  modified  or 
dissolved  by  the  United  States  court  into  which  the  cause  is  removed;  and  any 
bond  of  indemnity  or  other  obligation,  given  by  the  plaintiff  upon  the  issuing  or 
granting  of  any  attachment,  writ  of  injunction,  or  other  restraining  firocess,  against 
the  defendant  petitioning  for  the  removal  of  the  cause,  shall  also  continue  in  full 
force  and  may  be  prosecuted  by  the  defendant  and  made  available  for  his  indem- 
nity in  case  the  attachment,  injunction,  or  other  restraining  j^rocess  be  set  aside  or 
dissolved,  or  judgment  be  rendered  in  his  favor,  in  the  same  manner,  and  with  the 
same  effect,  as  if  such  attachment,  injunction,  or  other  restraining  process  had 
been  granted,  and  such  bond  had  been  originally  filed  or  given  in  such  state  court. 


§  914. — The  practice,  pleadings,  and  forms  and  modes  of  proceeding  in  civil 
causes,  other  than  equity  and  admiralty  causes,  in  the  circuit  and  district  courts, 
shall  conform,  as  near  as  may  be,  to  the  practice,  pleaiUngs,  and  forms  and  modes 
of  proceeding  existing  at  the  time  in  like  causes  in  the  com'ts  of  record  of  the  state 
within  which  su^h  circuit  or  district  com'ts  are  held,  any  rule  of  court  to  the  con- 
trary notwithstanding. 

§  915. — In  common -law  causes  in  the  circuit  and  district  courts  the  plaintiff 
shall  be  entitled  to  similar  remedies,  liy  attachment  or  other  process,  against  the 
property  of  the  defendant,  which  are  now  provided  by  the  laws  of  the  state  in 
which  such  court  is  held  for  the  courts  thereof;  and  such  circuit  or  district  courts 
may,  from  time  to  time,  by  general  rules,  adopt  such  state  laws  as  may  be  in  force 
in  the  states  where  they  are  held  in  relation  to  attachments  and  other  process: 
ProvifTtd,  that  similar  preliminary  afiidavits  or  proofs,  and  similar  secmity,  as 
required  by  such  state  laws,  shall  be  first  fiurnished  by  the  party  seeking  such 
attachment  or  other  remedy. 
II  Attacujieot— 2. 


418  UNITED    STATES. 

§  916. — The  party  recovering'  a  judgment  in  any  common -law  canse  in  any  * 
circuit  or  district  court,  shall  be  entitled  to  similar  remedies  upon  the  same,  by 
execution  or  otherwise,  to  reach  the  property  of  the  judgment  debtor,  as  arc  now 
provided  in  like  causes  by  the  laws  of  the  state  in  which  such  court  is  held,  or  by 
any  such  laws  hereafter  enacted  which  may  be  adopted  by  general  rules  of  such 
circuit  or  district  com-t;  and  such  com-ts  maj',  from  time  to  time,  by  general  rules, 
adopt  such  state  laws  as  may  hereafter  be  in  force  in  such  state  in  relation  to  reme- 
dies uiDon  judgments,  as  aforesaid,  by  execution  or  otherwise. 

§  933.-— An  attachment  of  propertj*,  upon  process  instituted  in  any  court  of  the 
United  States,  to  satisfy  such  judgment  as  may  be  recovei-ed  bj'  the  plaintiff 
therein,  except  in  the  cases  mentioned  in  the  iffeceding  nine  sections,  shall  be 
dissolved  when  any  contingency  occurs  by  which,  according  to  the  laws  of  the  state 
where  said  court  is  held,  such  attachment  would  be  dissolved  upon  like  process 
instituted  in  the  courts  of  said  state:  Provided,  that  nothing  herein  contained  shall 
interfere  with  any  prioritj^  of  the  United  States  in  the  payment  of  debts. 

§  935.  ^In  any  suit  by  the  United  States  against  a  corporation  for  the  recovery 
of  money  upon  a  bill,  note,  or  other  security,  the  debtors  of  the  corporation  may  be 
summoned  as  garnishees;  .tad  it  shall  be  the  duty  of  any  person  so  summoned  to 
appear  in  open  court  and  to  dejiose,  in  writing,  to  the  amount  which  he  was 
indebted  to  the  said  corporation  at  the  time  of  the  ser\nce  of  the  summons  and  r.t 
the  time  of  making  such  deposition;  and  judgment  may  be  entered  in  favor  of  the 
United  States  for  the  sum  admitted  by  such  garnishee  to  be  due  to  the  said  corpora- 
tion, in  the  same  manner  as  if  it  had  been  due  to  the  United  States:  Provided,  That 
no  judgment  shall  be  entered  against  any  garnishee  untU  after  judgment  has  been 
rendered  against  the  corporation  defendant  to  the  said  action,  nor  untU  the  sum  in 
which  the  garnishee  stands  indebted  is  actually  due. 

§  93G. — "When  any  person  summoned  as  garnishee  deposes  in  open  court  that  he 
is  not,  and  was  not  at  the  time  of  the  service  of  the  summons,  indebted  to  such 
corporation,  an  issue  may  be  tendered  by  the  United  States  upon  such  demand, 
and  if,  upon  the  trial  of  that  issue,  a  verdict  i?  rendered  against  the  garnishee, 
judgment  shall  be  entered  in  favor  of  the  United  States,  piu-suant  to  such  verdict, 
with  costs  of  suit. 

DEBTS   OR  PKOPEETY  OF  THE  UNITED   STATES. 

§  3466. — Whenever  any  person  indebted  to  the  United  States  is  insolvent,  or 
whenever  the  estate  of  any  deceased  debtor,  in  the  hands  of  the  executors  or 
administrators,  is  insufficient  to  pay  all  the  debts  due  from  the  deceased,  the  debts 
due  to  the  United  States  shall  be  fii-st  satisfied;  and  the  priority  hereby  established 
shall  extend  as  well  to  cases  in  which  a  debtor,  not  having  sufficient  property  to  pay 
all  his  debts,  makes  a  voluntary  assignment  thereof,  or  in  which  the  estate  and 
effects  of  an  absconding,  concealed,  or  absent  debtor  are  attached  by  process  of 
law,  as  to  cases  in  which  an  act  of  bankruptcy  is  committed. 

§  3753. — Whenever  any  property  owned  or  held  by  the  United  States,  or  in 
which  the  United  States  have  or  claim  an  interest,  shall,  in  any  judicial  proceeding 
under  the  laws  of  any  state,  district,  or  territory,  be  seized,  arrested,  attached,  or 
held  for  the  security  or  satisfaction  of  any  claim  made  against  such  property,  the 
secretary  of  the  treasury,  in  his  discretion,  may  direct  the  solicitor  of  the  treasury 
to  cause  a  stipulation  to  be  entered  into  by  the  proper  district  attornej'  for  the  dis- 
charge of  such  property  from  such  seizure,  arrest,  attachment,  or  proceeding,  to 
the  effect  that  ujion  such  discharge,  the  person  asserting  the  claim  against  such 
property  shall  become  entitled  to  all  the  benefits  of  this  and  the  following  section. 
Nothing  herein  contained  shall,  however,  be  considered  as  recognizing  or  conceding 
any  right  to  enforce  by  seizure,  arrest,  attachment,  or  any  judicial  process,  any 
claim  against  any  property  of  the  United  States,  or  against  any  property  held, 
owned,  or  employed  by  the  United  States,  or  Irv  any  department  thereof,  for  any 
public  use,  or  as  waiving  any  objection  to  anj'  proceeding  instituted  to  enforce  any 
Buch  claim. 

§  3754. — In  all  cases  where  a  stipulation  is  entered  into  under  the  preceding 
section,  and,  in  consequence  thereof,  the  i:)roperty  is  discharged,  and  final  judgment 
is  afterward  given  in  the  coxirt  of  last  resort  to  which  the  secretary  of  the  treasury 
may  deem  proper  to  cause  such  proceedings  to  be  carried,  affirming  the  claim  for 
the  security  or  satisfaction  of  which  such  proceedings  have  been  instituted,  and  the 
right  of  the  person  asserting  the  same  to  enforce  it  against  such  property  by  means 
of  such  proceedings,  notwithstanding  the  claims  of  tlie  United  States  thereto,  such 
final  judgment  sha'i  be  deemed,  to  aU  intents  and  purposes,  a  fuU  and  final  deter- 
mination of  the  rights  of  such  person,  and  shall  entitle  such  person,  as  against  the 
United  States,  to  such  rights  as  he  would  have  had  in  case  possession  of  such  prop- 


ALABAMA.  419 

erty  had  not  been  changed.  Whenever  such  claim  is  for  the  payment  of  money, 
and  the  same  is  by  such  judgment  found  to  be  due,  the  presentation  of  a  duly 
authenticated  copy  of  the  record  of  such  judgment  and  proceedings  shall  be  suffi- 
cient evidence  to  the  proi>er  accounting  officers  for  the  allowance  thereof;  and  the 
same  shall  thereupon  be  allowed  and  paid  out  of  any  moneys  in  the  treasury  not 
otherwise  appropriated.  The  amount  so  to  be  allowed  and  paid  shall  not,  however, 
exceed  the  value  of  the  interest  of  the  United  States  in  the  property  in  question. 


ALABAMA. 

[Civil  Code  of  1876,  and  Subsequent  Statutes.] 


TITLE    II,    CHAPTER    L 

ATTACHMENTS  AT  LAW. 

OP  THE  ISSUE  OF  ATTACHMENTS. 

§  3252  (2927).— Attachments  may  issue— 

1.  To  enforce  the  collection  of  a  debt,  whether  it  be  due  at  not,  at  the  time  the 
attachment  is  taken  out. 

2.  For  any  monej^ed  demand,  the  amount  of  which  can  be  certainl,y^scertained. 

3.  To  recover  damages  for  a  breach  of  contract,  when  the  damages  are  not  cer- 
tain or  liquidated. 

4.  When  the  action  sounds  in  damages  merely. 

§  3253  (2928).— And  in  the  following  cases: 

1.  When  the  defendant  resides  out  of  the  state. 

2.  When  the  defendant  absconds. 

3.  When  the  defendant  secretes  himself  so  that  the  ordinary  process  of  law  can 
not  be  served  on  him. 

4.  "When  the  defendant  is  about  to  remove  out  of  the  state. 

5.  When  the  defendant  is  about  to  remove  his  property  out  of  the  state,  so  that 
the  plaintiff  will  probably  lose  his  debt,  or  have  to  sue  for  it  in  another  state. 

6.  When  the  defendant  is  about  fraudulently  to  dispose  of  his  property.  * 

7.  When  the  defendant  has  fraudulently  disposed  of  his  property. 

8.  When  the  defendant  has  moneys,  property,  or  effects,  liable  to  satisfy  his 
debts,  which  he  fraudulently  withholds. 

§  .3254  (2929). — In  the  first  and  second  cases  mentioned  in  the  first  section  of  this 
article,  it  may  be  issued  by  any  judge  of  the  circuit  court,  returnable  to  any  county 
in  the  state,  or  by  the  clerk  of  the  circuit  court,  judge  of  the  probate  court,  or  any 
justice  of  the  peace,  within  their  respective  counties.  In  the  third  and  fourth 
cases,  by  a  judge  of  the  circuit  or  probate  court,  or  chancellor  only,  returnable  to 
any  county. 

§  .3255  (2930). — The  officer,  before  issuing  the  attachment  in  the  first  two  cases 
mentioned  in  the  last  section,  must  require  the  plaintiff,  his  agent  or  attorney,  to 
make  oath  of  the  amount  of  the  debt  or  demand,  and  that  it  is  justly  due;  also, 
that  one  of  the  causes  enumerated  in  the  second  section  of  this  article  exists,  and 
that  the  attachment  is  not  sued  out  for  the  purpose  of  vexing  or  harassing  the 
defendant;  which  ri.ust  also  be  reduced  to  writing,  and  subscribed  by  the  party. 

§  3256  (2931). — He  must  further  require  the  plaintiff,  his  agent  or  attorney,  to 
execute  a  bond  in  double  the  amount  claimed  to  lie  due,  with  sufficient  surety,  pay- 
able to  the  defendant,  with  condition  that  the  plaintiff  will  prosecute  the  attach- 
ment to  effect,  and  pay  the  defendant  all  such  damages  as  he  may  sustain  from  the 
vnrongf ul  or  vexatious  suing  out  of  such  attachment. 


420  ALABAMA. 

§  3257  (2932). — Wlien  an  attachment  is  applied  for  in  the  cases  provided  for  in 
the  third  and  fourth  subdivisions  of  the  first  section  of  this  article,  the  judge  or 
chancellor,  before  issuing  it,  must  require  the  plaintiff,  his  agent  or  attorney,  in 
addition  to  the  affidavit  and  bond  required  in  other  cases,  to  make  affidavit  in 
•writing  of  the  special  facts  and  circumstances,  so  as  to  enable  him  to  determine 
the  amount  for  which  a  levy  must  be  made;  which  sum  may,  at  the  discretion  of 
the  coiu-t,  be  reduced  at  the  return  term  of  the  attachment,  on  affidavit  of  the 
defendant,  and  the  levy  released  to  the  amount  of  such  reduction. 

§  3258  (2933). — A  non-resident  of  this  state  may  sue  out  an  attachment  against 
a  non-resident  for  an  existing  debt,  or  ascertained  liability;  but  the  plaintiff,  his 
agent,  or  attorney,  is  required,  in  addition  to  the  oath  necessary  in  other  cases,  to 
swear  that,  according  to  the  best  of  his  knowledge,  information  and  belief,  the 
defendant  has  not  sufficient  property  within  the  state  of  his  residence,  wherefrom 
to  satisfy  the  debt;  and  must  also  give  bond  as  in  other  cases,  with  surety,  resi- 
dent in  this  State.     [Amended  Stats.  1883,  p.  147.] 

§  3259  (2934). — When  an  attachment  is  sued  out  against  a  non-resident  of  the 
state,  the  writ  shall  be  returned  to  the  clerk  of  the  court  as  soon  as  levied  upon 
the  property-  of  the  defendant,  and  thereupon  the  clerk  shall  cause  a  notice  of  the 
attachment  and  levy  on  the  defendant's  property,  to  be  advertised  cnce  a  week, 
for  three  successive  weeks,  in  some  newspaper,  a  copy  of  which  must  be  sent  by 
mail  to  the  defendant,  if  his  residence  is  known,  or  can  be  ascertained,  and  if  such 
publication  is  perfected  twenty  days  before  the  next  term  of  the  court,  the  case 
shall  stand  for  trial  at  that  term,  otherwise  at  the  succeeding  term,  or  any  other 
term  after  the  perfection  of  such  publication,  twenty  days  prior  thereto. — [February 
23,  1883;  Statutes  18S2-3,  p.  147.] 

§  3260. — Notice  of  -the  levy  of  the  attachment  shall  be  given  in  writing  by  the 
sheriff,  or  other  officer  who  makes  such  levy,  to  the  defendant  in  person,  or  notice 
thereof  in  writing  left  at  his  residence,  if  resident  in  the  county;  and  if  not  resi- 
dent in  the  county,  but  a  resident  of  the  state,  then  by  jjutting  up  a  written  notice 
at  the  court-house  door,  and  by  sending  a  copy  of  the  same  by  mail,  addressed  to 
the  defendant  at  the  post-office  nearest  his  residence. 

§  3261  (2936). — Corporations,  either  foreign  or  domestic,  are  entitled  to  process 
of  attachment  for  the  recovery  of  the  debts,  or  ascertained  demands  due  them; 
the  j)resident,  cashier  of  the  corporation,  or  an  agent,  or  attorney  thereof,  making 
the  affidavit  and  executing  bond  as  in  other  cases. 

§  3262  (2937). — T^Tien  an  attachment  is  sued  out  in  favor  of  a  non-resident  or  a 
corpoi-ation,  security  for  the  costs  of  the  suit  may  be  taken  and  approved  by  the 
officer  issuing  the  same,  or  may  be  indorsed  with  his  approval  on  the  attachment. 

§  3263  (2938). — Process  of  attachment  may  issue  against  foreign  corporations, 
having  x^roperty  in  this  state,  for  the  recovery  of  debts,  or  to  recover  damages  for 
a  breach  of  contract  when  the  damages  are  not  certain.or  liquidated,  or  in  cases 
where  the  action  sounds  in  damages  merely,  in  the  same  manner  and  subject  to 
the  same  rules  as  in  case  of  natural  persons  residing  without  this  state. 

§  3264  (2939).— The  form  of  attachment  must  be  in  substance  as  follows;  but  no 
objection  shall  be  taken  for  any  defect  in  form,  if  the  essential  matters  are  set  forth: 

The  State  of  Alabama,  )      To  any  sheriff  of  *-he  State  of  Alabama: 

Coimty.         )  WTiereas  A.  B.  (or  C.  D. ,  as  the  agent  or  attorney 

of  A.  B.,  as  the  case  may  be),  hath  complained  on  oath  to  me,  E.  F.,  judge  of  the 
circuit  com-t  of  said  state  (or  justice  of  the  peace,  or  judge  of  the  i^robate  court, 
or  clerk  of  the  circuit  court  of  said  county,  or  as  the  case  may  be),  that  G.  H.  is 

(or  wiU  be,  as  the  case  may  be),  justly  indebted  to  the  plaintiff  in  the  sum  of 

doUars,  and  the  plaintiff  having  made  affidavit  and  given  bond  aa  required  by  Ihw, 
in  such  cases,  you  are  hereby  commanded  to  attach  so  much  of  the  estate  of  G.  H. 
as  will  be  of  value  to  satisfy  the  said  debt  and  costs,  according  to  the  complaint; 
and  such  estate,  unless  replevied,  so  to  secure  that  the  same  may  be  liable  to  fin- 
ther  proceedings  thereon,  to  be  had  at  the  next  term  of  the  circuit  comi;  for  the 

county  of ,  to  be  held  at  the  com-t -house  thereof;  when  and  where  you 

must  make  known  how  you  have  executed  this  writ. 

Witness  my  hand  this,  etc.  E.  F.,  Clerk. 

§  3265  (2940).— The  bond  and  affidavit  must  be  returned  by  the  officer  issuing 
the  attachment,  to  the  coui-t  to  which  the  attachment  is  returnable. 

§  3266  (2941). — Attachment  process  may  issue  and  be  executed  on  Sunday  for 
the  collection  of  debts,  if  the  plaintiff  make  oath  as  is  required  for  the  issue  of  bail 
process  on  Sunday,  and  give  the  bond  required  in  this  chapter. 


ALABAMA.  421 

§  3267  (2912). — The  provisions  of  this  chapter  are  applicable  to  all  private  cor- 
porations, and  all  affidavits  or  answers  required  to  be  made  under  its  provisions 
may  be  made  by  the  president,  cashier,  secretary,  or  any  other  duly  authorized 
agent  of  such  corporation;  and  such  corporations  may  do  and  be  dealt  with  under 
its  provisions  in  the  same  manner  as  if  they  were  natural  persons. 

IN  WHAT  MANNER  AND  UPON  WHAT  PROPERTY  EXECUTED. 

§  3268  (2943). — Attachments  may  be  levied  on  real  estate,  whether  the  same  be 
a  fee  simple  or  any  less  legal  estate,  or  personal  i^roperty  of  the  defendant;  or  the 
same  may  be  executed  by  summoning  any  person  indebted  to,  or  having  in  his 
possession,  or  under  his  control,  property  belonging  to  the  defendant;  and  the 
officer  executing  the  writ  must  indorse  the  levy  or  service  thereon;  and  if  i^racti- 
cable,  take  the  property  in  his  possession,  unless  replevied,  as  hereinafter  described. 

§  3269  (2944). — Such  person  is  called  the  garnishee,  and  must  be  cited  by  the 
officer  to  appear  at  the  return  term  of  the  writ,  and  answer  upon  oath  whether  he 
was  indebted  to  the  defendant  at  the  time  of  the  levy  of  the  attachment,  or  at  the 
time  of  making  his  answer,  and  whether  he  will  not  be  indebted  in  future  to  him 
by  a  contract  then  existing;  and  whether  he  has  not  in  his  possession,  or  under  his 
control,  personal  property,  or  things  in  action,  belonging  to  the  defendant;  a  copy 
of  which  citation  he  must  return  executed,  together  with  the  attachment  and  levy. 

_  §  3270  (2945). — An  attachment  may  be  levied  on  the  joint  or  separate  estate  of 
joint  obligors,  promisors,  or  partners,  whether  resident  or  non-resident. 

• 
§  3271  (2946). — Executors  and  administrators  may  be  gamisheed  for  a  debt  due 
by  the  testator,  or  intestate,  to  the  defendant,  and  may  commence  a  suit  by  attach- 
ment in  their  representative  character. 

§  3272  (2947). — Executors  and  administrators  may  be  gamisheed  for  debts  due 
the  legatees,  or  distributees;  but  no  judgment  can  be  rendered  against  them  until 
a  settlement  of  the  estate,  unless  they  assent  to  the  legacy,  or  admit  assets  to  pay 
the  amount  claimed,  or  some  portion  thereof,  out  of  the  distributive  share  of  the 
debtor. 

§  3273  (2948). — Money  in  the  hands  of  an  attorney-at-law,  sheriff,  or  other 
officer,  may  be  attached;  and  in  the  case  of  officers  of  the  com-t,  must  be  paid  into 
court,  to  abide  the  result,  unless  the  court  otherwise  direct. 

§  3274  (2949). — No  judgment  can  be  rendered  against  an  executor  or  adminis- 
trator upon  his  answer  in  attachment,  or  garnishment,  until  the  lapse  of  eighteen 
months  after  grant  of  letters. 

§3275  (29.")0).^ — Money  or  effects  of  the  defendant  in  the  hands  of  a  trustee, 
may  be  attached  and  held  subject  to  the  validity  of  the  instrument  creating  the 
trust;  or  the  excess  remaining  in  the  trustee's  hands,  after  the  execution  of  the 
trust,  if  valid;  but  if  the  deed  be  held  void,  the  trustee,  if  not  guilty  of  actual 
fraud,  may  retain  for.a  debt  due  himself,  and  must  Ije  protected  so  far  as  he  has 
acted  in  good  faith  under  the  trust,  before  the  levy  of  the  attachment. 

§  3276  (2951). — A  debt  in  suit,  in  any  of  the  coiuH;s  of  this  state,  may  be  at- 
tached; and  if  the  suit  is  not  depending  in  the  same  court  where  the  attachment 
is  brought,  the  court,  after  judgment,  on  proof  by  the  garnishee  of  the  pending 
attachment,  must  stay  execution,  until  notified  by  the  clerk  of  the  court  in  which 
the  attachment  is  instituted,  that  final  judgment  has  been  rendered;  in  which  case, 
it  must  make  the  approi^riate  order,  according  as  the  judgment  is  rendered  for  the 
plaintiff  or  defendant. 

§  3277  (2952). — The  attachment  may  be  executed  in  any  county  of  the  state  by 
the  sheriff  of  the  county  in  which  the  property  is  found,  or  in  which  any  person 
may  be  found  indebted  to  the  defendant,  or  having  proi^erty  or  things  in  action 
of  the  defendant  in  his  possession,  or  under  his  control.  The  sheriff  must  take 
and  hold  the  property  attached,  unless  replevied,  subject  to  the  order  of  the  court 
in  which  the  attachment  is  pending. 

§  3278  (2954). — Branch  writs  of  attachment  may  issue  to  any  county  of  the  state, 
directed  -to  any  sheriff  of  the  state  of  Alabama,  to  be  executed  as  in  the  preceding 
section. 

§  3279  (2953). — When  process  of  attachment  is  issued  by  a  justice  of  the  peace, 
if  the  plaintiff,  his  agent  or  attorney,  make  oath  t  hat  there  is  danger  of  losing  the 
debt,  unless  the  process  is  executed  by  a  constable,  and  the  amount  of  the  debt 
does  not  exceed  the  amount  of  the  constable's  bond,  such  justice  may  have  such 


422  ALABAMA. 

process  executed  by  the  constable  of  the  beat  in  wliich  the  process  issued,  and  the 
retiu-n  of  the  service  may  be  made  to  the  court  in  which  the  ^^Tit  is  returnable,  by 
such  justice  or  constable,  who  shall  be  subject  to  all  the  liabilities  provided  by 
law,  for  failing  to  dischai-ge  any  dutj'  in  relation  to  such  service  or  return. 

§  3280  (2955). — The  levy  of  an  attachment  creates  a  lien  in  favor  of  the  plaintiff, 
\ipon  the  estate  of  the  defendant  so  levied  on,  from  the  levy;  and  upon  the  money 
or  effects  in  the  possession  of  the  garnishee,  from  the  service  of  garnishment. 

§  3281  (2956). — If  the  property  le\'ied  on  be  perishable,  it  must  be  sold  by  order 
of  the  court,  on  motion  of  either  party,  and  the  proceeds  of  the  sale  retained  by 
the  sheriff  to  await  the  decision  of  the  cause,  unless  the  court  otherwise  direct. 

§  3282  (2957). — If  the  property  levied  on  be  of  so  perishing  a  nature  that  it  will 
deteriorate  greatly  in  value,  or  be  destroyed  before  the  meeting  of  the  court,  or  if 
the  charge  of  keeping  it  be  verj^  great,  it  is  the  duty  of  the  sheriff,  if  not  replevied, 
to  sell  it  at  public  auction,  returning  the  facts  and  the  money  to  the  court. 

§  3283  (3539A). — In  attachment  suits,  in  which  a  sale  of  the  property  seized  is 
made  under  the  attachment,  if  the  i^roceeds  thereof  are  in  the  hands  of  the  sheriff 
or  other  officer  of  the  court  to  which  the  attachment  is  retiu-nable,  and  if  no  ad- 
verse claim  is  filed  ■within  thirty  days  after  the  institution  of  such  suits,  or  no 
denial  on  oath  by  the  defendant  of  the  debt  sued  upon  is  filed  withui  thirty  daj-3 
after  the  issue  of  the  attachment,  the  judge  of  the  court  from  which  such  attach- 
ment issues,  or  to  which  it  is  returnable,  or  the  magistrate  to  whom  it  is  returna- 
ble, must,  either  ia  term-time  or  vacation,  on  plaintiff's  motion,  on  proof  of  notice 
of  such  motion  having  been  served  for  ten  days  on  the  defendant  or  his  attorney, 
if  either  is  resident  in  the  county  where  the  suit  is  pending,  or,  if  the  defendant  ia 
a  non-resident,  on  proof  of  notice,  by  publication,  once  a  week  for  three  suc- 
cessive weeks,  in  some  newspaper  published  in  such  coimty,  order  so  much  of  the 
proceeds  of  such  sale  to  be  paid  to  the  plaintiff,  or  his  attorney,  after  reserving 
costs,  as  may  be  sufficient  to  satisfy  the  claim  of  the  plaintiff ;  but  plaintiff  must, 
before  receiving  such  money,  enter  into  bond,  ■«'ith  surety  or  sureties,  to  be  ap- 
proved by  the  judge  or  magistrate,  conditioned  that  if,  upon  the  trial  of  the  cause, 
he  should  faU  in  his  action,  he  or  his  sureties  shall,  within  thirty  days  thereafter, 
pay  into  the  court,  for  the  use  of  the  defendant,  the  amount  that  may  have  been 
received  by  such  plaintiff,  with  interest  and  costs  thereon;  and  upon  default 
thereof  execution  may  issue  instanter. 

§  3284  (2958). — The  sheriff  and  his  siu-eties,  or  either  of  them,  may  be  proceeded 
against  by  motion,  on  one  day's  notice,  at  the  instance  of  the  plaintiff,  or  of  the 
defendant,  if  the  plaintiff  fail  in  the  action,  for  any  money  received  for  the  sale  of 
perishable  property;  and  judgment  rendered  against  hJTn  for  the  amount,  and  five 
per  cent,  a  month  from  the  time  of  the  demand. 

§  3285  (2959). — When  a  doubt  exists  as  to  the  title  of  the  defendant  to  personal 
property,  which  the  sheriff  is  required  to  levy  upon,  he  may  demand  indemnity 
from  the  plaintiff. 

ATTACHMEXTS  FOR  ADVANCES  TO  MAKE  CROPS. 

§  3286  (1858). — Whenever  advances  in  horses,  mules,  oxen,  or  necessary  pro- 
visions, farming  tools  and  implements,  or  money  to  purchase  the  same,  shall  be 
made  by  any  person  to  any  other  person  in  this  state,  and  such  advance  shall  be 
obtained  by  the  latter  to  enable  him  to  make  a  crop,  and  it  shall  be  declared  in  a 
WTitten  note  or  obligation  for  the  same,  given  by  the  person  to  whom  such  advance 
is  made,  that  the  same  was  obtained  by  him  bona  fide,  for  the  purpose  of  making 
a  crop,  and  that  without  such  advance  it  would  not  be  in  the  power  of  such  person 
to  procure  the  necessary  team,  provisions  and  farming  implements,  to  make  a 
crop,  the  advance  so  made,  or  the  amount  thereof,  shall  be  a  lien  on  such  crop, 
and  the  stock  bought  or  fm-nished  with  the  money  so  advanced;  and  such  lien 
shall  have  preference  of  all  other  liens,  except  that  for  the  rent  of  the  land  on 
which  such  crop  may  be  made,  and  that  for  advances  by  the  landlord  to  make 
the  crop. 

§  3287  (1859). — Any  person  taking  a  lien  on  the  crop  for  advances  as  set  forth 
in  the  preceding  section,  must  have  the  same  recorded  in  the  office  of  the  judge  of 
probate  of  the  county  in  which  the  person  to  whom  the  advance  is  made  resides, 
within  sixty  days  from  the  making  of  the  same;  and  if  he  fail  to  have  the  same 
recorded,  the  lien  shaU  be  considered  lost  and  forfeited. 

§  3288  (1860). — Any  person  having  a  ben  on  the  crop  and  stock  of  another  for 
advances  to  assist  in  making  the  crop,  shall  have  the  same  rights  and  remedies  to 
enforce  such  lien  as  landlords  have  in  this  state  for  the  collection,  of  rents. 


ALABAMA,  423 

OF  EEPLEVT  AND  CI/AIIT  OF  PEOPEETt. 

§  3289  (2964). — The  defendant  in  attachment,  or  in  his  absence  a  stranger,  may 
replevy  the  goods  or  chattels  attached,  or  any  part  thereof,  l3y  executing  bond  with 
surety,  payable  to  the  plaintiff,  in  double  the  amount  of  the  property  replevied, 
the  value  thereof  to  bo  determined  by  the  officer  making  the  levj^  w-itli  condition 
that  if  the  defendant  fail  in  the  action,  he  or  his  sureties  -will  return  the  specific 
property  attached  within  thirty  days  after  the  judgment,  which  bond  must  be  re- 
turned with  the  otJier  papers  of  the  cause.     [Amended  Stats.  1881,  p.  54.] 

§  3290  (2965).— If  property  attached  be  claimed  by  a  person  not  a  party  to  the 
suit,  and  affidavit  and  bond  be  executed  as  required  by  law  in  cases  of  trial  of  right 
of  propertj'  when  levied  on  by  a  writ  ci  fieri  facias,  the  propertymust  be  delivered 
to  the  claimant,  and  the  affidavit  and  bond  be  returned  by  the  sheriff  ■v\dth  the 
attachment,  upon  which  the  same  proceedings  must  be  had  as  in  other  trials  of 
right  of  property,  except  that  the  sheriff  must  return  the  original  attachment  to 
the  proper  county.  The  affidavit  herein  required  may  be  administered  by  the 
officer  levying  the  process. 

§3291  (2966). — When  property  replevied  is  not  delivered  in  thirty  days  after 
judgment  against  the  defendant  in  attachment,  it  is  the  duty  of  the  sheriff  to  return 
the  bond  forfeited,  and  execution  must  issue  thereon  against  the  principal  and 
sureties  on  such  bond,  for  the  amount  of  the  value  of  the  pro7ierty  replevied,  as 
fixed  by  the  sheriff  or  other  oiEcer,  with  interest  thereon  from  ilae  date  of  the  bond 
so  forfeited,  and  for  the  costs  of  replevy,  and  of  the  executicm.  But,  if  such  valu- 
ation is  greater  thr^n  the  amount  of  the  judgment  against  the  defendant  in  attach- 
ment, then  execution  shall  issue  against  said  principal  and  sureties  for  the  amount 
of  the  judgment  and  costs.     [March  1,  1881;  Statutes  1880-81,  p.  55.] 

S  3292  (2967). — If  any  of  the  property  so  replevied  should  die  or  be  destroyed 
without  fault  or  negligence  on  the  part  of  the  i:)erson  in  possession,  the  case  is  gov- 
erned by  the  provisions  of  section  3217  (2890). 

PROCEEDINGS   AGAINST   GAENISHEES. 

§  3293  (2968). — The  garnishee  must  answer  upon  oath  according  to  the  terms  of 
the  citation,  within  the  first  three  days  of  the  return  term  of  the  attachment,  and 
may,  if  required  by  the  plaintiff,  be  examined  orally  in  the  presence  of  the  court. 

§  3294  (2969). — If  he  answer  and  admit  indebtedness  to  the  defendant,  judgment 
thereon  must  be  rendered  against  him,  after  jud.gment  against  the  defendant  in 
attachment,  for  the  amount  so  admitted,  if  less  than  the  amount  of  the  judgment 
against  such  defendant;  if  more,  or  equal  thereto,  then  for  the  amount  thereon. 
If  the  debt  be  not  then  payable,  execution  must  be  suspended  until  its  maturity. 

§  3295  (2970). — If  he  admit  the  possession  of  chattels  of  the  defendant,  judgment 
of  condemnation  must  be  rendered,  that  they  be  delivered  up  on  demand,  after 
the  rendition  of  judgment  on  tlie  attachment  in  favor  of  the  plaintiff,  or  so  much 
as  may  be  necessaiy  to  satisfy  the  judgment,  and  the  sheriff  must  make  sale 
thereof. 

§  3296  (2971). — If  he  fail  to  deliver  them  to  the  sheriff  on  demand,  he  must 
make  return  thereof  to  the  clerk,  who  must  thereupon  issue  a  WTrit  of  fieri  facias 
against  him  in  favor  of  the  plaintiff,  for  the  amount  of  the  judgment  and  costs. 

§  3297  (2972). — If  the  failure  to  deliver  property,  as  provided  in  the  preceding 
section,  is  without  fault  or  negligence  on  the  part  of  the  garnishee,  he  may  obtain 
relief  by  supersedeas,  according  to  the  provisions  of  section  3217  (2890). 

§  3298  (2973). — If  the  garnishee  fail  to  appear  and  answer,  a  conditional  judg- 
ment rnust  be  rendered  against  him  for  the  amount  of  the  plaintiff's  claim,  :-.s 
ascertained  by  his  judgment,  to  be  made  absolute  if  he  does  not  appear  within  the 
first  three  days  of  the  next  term  and  answer;  a  notice  of  the  judgement  must  be 
issued  to  him  by  the  clerk,  to  be  served  on  him  as  other  jDrocess  by  the  sheriff ;  if 
he  fail  to  appear  at  the  next  term,  after  notice  executed,  or  if  'two  notices  be  re- 
'tumed  "  not  found  "  by  the  sheriff"  of  the  county  in  which  the  garnishment  was  exe- 
cuted, the  judgment  must  be  made  absolute. 

COLLATEEAL   fSSUES. 

§  3299  (2974). — The  plaintiff,  his  agent  or  attorney,  may  controvert  the  answer 
of  the  garnishee  by  making  oath,  at  the  term  the  answer  is  made,  that  he  beheves 
it  to  be  untrue;  whereupon  an  issue  must  be  made  up  under  the  direction  of  the 


424  ALABAMA. 

court,  in  ■which  the  plaintiff  must  allege  in  what  respect  the  answer  is  imtrue,  and, 
if  required  by  either  party,  a  jury  must  be  imxjanneled  to  try  the  facts. 

§  3300  (2975). — The  defendant,  upon  the  coming  in  of  the  answer,  may  allege 
that  the  garnishee  is  indebted  to  him  in  a  larger  sum  than  he  has  admitted,  or  that 
he  holds  property  of  the  defendant  not  admitted  by  him  in  his  answer,  which  being 
reduced  to  v.Titing,  setting  forth  particularly  in  what  respect  the  answer  h  defi- 
cient, and  sworn  to,  thereupon  an  issue  must  be  made  up  under  the  direction  of 
the  court  to  try  the  fact  by  a  jury,  if  required  by  either  party;  but  this  controversy 
does  not  prevent  the  plaintiff  from  taking  judgment  for  the  sum  admitted  to  be 
due  by  the  garnishee,  or  for  a  condenmation  of  the  property  admitted  to  be  in 
his  hands. 

§  3301  (297G). — If  this  issue  be  found  against  the  garnishee,  judgment  must  be 
rendered  against  him  for  the  amount  of  money  or  property  in  his  hands  not  ad- 
mitted by  him,  which  must  be  in  favor  of  the  plaintiff,  if  necessary  to  satisfy  his 
claim,  or  judgment  against  the  defendant,  or  ia  favor  of  the  defendant,  if  the  judg- 
ment has  been  satisfied. 

§  3302  (2977). — When  the  garnishee,  by  his  answer,  or  at  any  time  before  final 
judgment  against  him,  alleges  that  he  has  been  notified  that  another  person  claims 
title  to,  or  an  interest  in  the  debt  or  property  which  by  his  answer  he  has  admitted 
to  be  due,  or  to  be  in  his  possession,  the  court  must  suspend  proceedings  against 
the  garnishee,  and  cause  a  notice  to  issue  to  such  person,  to  appear  at  the  next 
term  of  the  court  and  contest  with  the  plaintiff  the  right  to  the  money  or  property. 

§  3303  (2978). — If  he  appear,  he  must  be  required  to  propound  bis  claim  in  the 
disputed  property  or  debt,  in  writing,  and  iaake  oath  thereto,  upon  which  the 
plaintiff  must  take  issue  in  law  or  in  fact,  and  the  issue  in  fact  must  be  tried  by  a 
jury,  if  required  by  either  party.  If  the  issue  be  found  for  the  plaintiff,  judgment 
must  be  rendered  against  the  garnishee  on  his  answer;  if  for  the  contestant,  the 
garnishee  must  be  discharged. 

§  3304  (2979). — If  the  contestant  he  a  non-resident,  the  contest  must  be  stayed 
six  mouths,  and  the  same  proceedings  had 'as  in  the  case  of  a  non-resident  de- 
fendant. 

§  3305  (2980). — If  two  notices  to  the  resident  contestant  be  returned  "not 
found,"  judgment  must  be  rendered  against  the  garnishee  on  his  answer. 

§  3.30G  (2981). — The  interposition  of  these  collateral  issues  does  not  affect  the 
jurisdiction  of  the  court  obtained  by  levy  of  the  attachment. 

§  3307  (2982). — Upon  the  trial  of  these  collateral  issues,  either  party  may  reserve 
any  question  by  bill  of  exceptions,  for  revision,  and  jiidgment  for  costs  must  be 
rendered  against  the  unsuccessful  party. 

§  3398  (2983). — An  appeal  lies  to  the  supreme  court  at  the  instance  of  the 
plaintiff,  the  defendant,  the  garnishee,  the  contestant  or  claimant. 

§  3309  (2084). — ^When  the  answer  of  the  garnishee  is  not  controverted,  or  if  con- 
troverted i.3  foimd  for  him,  he  is  allowed  the  jiay  of  a  juror  during  his  attendance, 
for  which  execution  may  issue.  If  there  be  no  effects,  then  from  the  plaintiff,  for 
which  he  may  have  judgment  and  execution. 

§  3310  (2985). — If  the  garnishee  die  after  he  has  been  smnmoned  as  garnishee, 
and  pending  the  litigation,  the  proceedings  may  be  revived  against  his  legal  repre- 
sentatives; so  if  the  contestant  die,  after  notice  to  appear  and  contest  with  the 
plaintiff  the  right  to  the  money  of  property  in  the  hands  .of  the  garnishee,  the  suit 
may  be  re>dved  in  the  name  of  his  legal  representatives. 

§  3311  (2986). — ^No  judgment  can  be  rendered  against  the  defendant  in  attach- 
ment, where  a  claim  has  been  interposed  to  try  the  right  of  property,  where  the 
answer  of  the  garnishee  is  contested,  or  a  contest  has  arisen  about  the  title  or  in- 
terest in  the  money  or  goods  attached,  imtil  these  questions  are  settled;  unless 
other  property  or  effects  of  the  defendant  be  attached,  about  M"hich  no  contest  has 
arisen. 

§  3312  (2987). — If  the  plaintiff  do  not  obtain  judgment  against  the  defendant  in 
attaclimcnt,  all  property  condemned,  where  a  claim  had  been  interposed,  must  be 
restored  to  the  claimant  at  the  costs  of  the  plaintiff. 

§  3313  (2988). — Alias  writs  of  attachment,  or  new  writs  of  garnishment,  may  be 
issued  by  the  clerk,  without  a  renewal  of  the  bond  or  affidavit,  in  cases  where  no 


ALABAMA.  425 

property  has  Tieen  found,  or  not  sufficient  to  satisfy  the  debt,  or  when,  pending  the 
Buit,  the  plaintiff  wishes  to  garnishee  other  persons. 

§  3314  (2989). — Attachments  issued  without  affidavit  and  bond,  as  herein  pre- 
scribed, may  be  abated  on  plea  o€  the  defendant,  filed  within  the  first  three  days 
of  the  return  term. 

§  3315(2990). — The  attachment  law  must  be  liberally  construed,  to  advance  the 
manifest  intent  of  the  law,  and  the  plaintiff,  before  or  during  the  trial,  must  be 
permitted  to  amend  any  defect  of  form,  in  the  affidavit,  bond,  or  attachment;  and 
no  attachment  must  be  dismissed  for  any  defect  in,  or  want  of  bond,  if  the  plaintiff, 
his  agent  or  attorney,  is  willing  to  give  or  substitute  a  sufficient  bond. 

§  3316  (2991). — The  judgment  of  the  circuit  court,  condemning  the  debt  or  prop- 
erty in  the  hands  of  the  garnishee,  to  the  satisfaction  of  the  plaintiff's  demand,  is 
conclusive  as  between  the  garnishee  and  the  defendant,  to  the  extent  of  such  judg- 
ment, unless  the  defendant  prosecute  an  appeal  from  such  judgment,  which  he  may 
do  in  his  own  name;  and  if  such  judgment  is  superseded  by  bond,  and  the  garnishee 
notiSed  of  the  fact,  he  is  not  permitted  to  discharge  such  judgment  pending  the 
appeal. 

§  3.317  (2992). — The  defendant  must  not  deny  or  put  in  issue  the  cause  for  which 
the  attachment  issued,  but  may,  at  any  time  within  three  years  of  the  sumg  out 
of  the  attachment,  before  or  after  the  suit  is  determined,  commence  suit  on  the 
attachment  bond,  and  may  recover  such  damages  as  he  has  actually  sustained, 
if  the  attachment  was  vvrongfully  sued  out. 

§  3318  (2993). — If  sued  out  maliciously,  as  well  as  wrongfully,  the  jiu-y  may, 
in  addition,  give  vindictive  damages. 

ANCILLARY  ATTACHMENTS. 

§  3319  (2994).— When  a  summons  has  been  issued,  the  plaintiff,  his  agent  or 
attorney,  may  at  any  time  before  judgment  make  affidavit  before  the  clerk  of 
the  court  in  which  the  suit  is  pending,  and  give  bond  with  secxurity  as  in  cases 
of  original  attachment,  and  thereupon  the  clerk  must  issue  an  attachment  re- 
turnable as  in  other  cases. 

§  3320  (8995). — The  suit  must  proceed  thereafter,  in  all  respects,  as  if  it  had 
been  commenced  originally  by  attachment. 

JUDICIAL   ATTACHMENTS. 

§  3321  (2993). — When  a  summons  has  been  returned  "not  found,"  as  to  all  or 
any  of  the  defendants,  residents  of  the  county,  if  the  plaintiff,  his  agent  or  at- 
torney, make  affidavit  that  the  defendant  has  evaded  the  service  of  the  process, 
the  court  must  direct  an  attachment  to  issue  returnable  to  the  next  term  of  the 
coiu:t,  and  the  cause  must  in  all  respects  proceed  as  against  such  defendant,  as 
if  originally  commenced  by  attachment. 

§  3322  (2997). — The  plaintiff  maj-,  notwithstanding  such  judicial  attachment, 
proceed  to  judgment  against  any  of  the  defendants  on  whom  process  was  served; 
but  a  judgment  and  satisfaction  of  the  debt  or  claim  abates  the  attachment  at 
the  costs  of  the  plaintiff. 

OF  THE  PLEADINGS  IN  ATTACHMENT,   TEIAL,   JUDGMENT  AND  EXECUTION. 

§  3323  (2998).— The  plaintiff  must,  within  the  first  three  days  of  the  retiirn 
term  of  the  attachment,  file  his  complaint  as  in  suits  commenced  by  summons, 
and  the  cause  stands  for  trial  at  the  first  term  after  the  issue  of  the  attach- 
ment, if  the  levy  is  made  and  notice  thereof  given  twenty  days  before  the  com- 
mencement of  the  term  of  the  court  to  which  such  attachment  is  returnable; 
but  if  the  attachment  is  issued  upon  a  demand  not  due  when  it  is  issued,  the 
case  shall  not  stand  for  trial  imtil  such  demand  is  due. 

§  3324  (2999).— If  the  debt  is  not  due,  the  plaintiff  is  not  required  to  file  his 
complaint  until  the  maturity  of  the  debt. 

§  3325  (3000).— If  the  defendant  appear  and  plead,  the  cause  proceeds  as  in 
suits  commenced  in  the  ordinary  mode.  If  he  make  no  defense,  the  plaintiff 
may,  at  the  trial  term,  take  judgment  final,  hy  nihil  (/icti  or  default,  or  execute 
ft  writ  of  inquiry  of  damages,  as  may  be  necessary. 


426  ALABAMA. 

§  3326  (3001). — When  the  property  attached  and  in  the  hands  of  the  gar- 
nishee is  not  sufficient  to  satisfy  the  judgment  of  the  ijlaintiff  against  the  de- 
fendant, the  clerk  must  issue  execution  for  the  residue,  which  may  be  levied 
on  any  property  of  the  defendant. 

ATTACHMENTS  AGAINST  STEAMBOATS,   ETC. 

§  3327  (3002). — If  any  steamboat,  vessel,  or  water-craft  of  any  description,  from 
the  negligence  or  want  of  skill  'of  the  master,  pilot,  engineer,  or  other  officer,  or 
whilst  racing  with  any  other  boat  or  vessel,  runs  into,  runs  foul  of,  destroys  or 
injures,  any  other  boat,  vessel,  barge,  flat-boat,  or  other  water-craft,  by  means 
whereof  the  firoperty  of  any  person  on  board  of  such  boat  or  other  water-craft  is 
injured  or  destroyed,  the  person  so  injured  has  a  lien  upon  the  boat  or  vessel  caus- 
ing the  injury,  to  the  amount  of  the  loss,  which  may  be  enforced  as  hereinafter 
provided. 

§  3328  (3003). — The  person  so  injtu-ed,  his  agent  or  attorney,  must  make  affidavit 
of  the  loss  sustained,  and  the  cause  thereof,  stating  the  name  of  the  boat  or  vessel, 
before  any  judge  of  the  circuit  court,  or  judge  of  probate,  clerk  of  the  circuit  court, 
or  justice  of  the  peace,  and  also  execute  a  bond  with  surety,  payable  to  the  owners 
of  the  boat  or  vessel,  byname,  if  known,  if  not,  payable  to  the  "owners,"  in 
double  the  amount  of  the  value  of  the  property  injured  or  destroyed,  with  condi- 
tion to  prosecute  the  attachment  to  effect,  and  to  pay  the  owners  all  such  costs 
and  damages  as  may  be  sustained  by  the  wrongful  or  vexatious  suing  out  such 
attachment. 

§  3329  (3004). — Upon  the  execution  of  such  bond  and  affidavit,  the  judge,  clerk, 
or  justice  must  issue  an  attachment,  which  may  be  made  returnable  to  any  circuit 
court  in  the  state,  directing  any  sheriff  of  the  State  of  Alabama  to  seize  and  retain 
the  boat,  or  other  water-craft,  her  tackle,  apparel,  and  furniture,  until  discharged 
by  due  course  of  law. 

§  3330  (3005). — After  such  seizure,  the  sheriff  must  retain  the  boat  or  vessel  in 
his  possession,  together  with  the  tackle,  apparel,  etc.,  to  answer  the  judgment 
which  may  be  rendered,  and  make  return  thereof,  together  with  the  affidavit,  bond, 
and  attachment,  to  the  court  to  which  the  process  is  returnable. 

?  3331  (.300G). — The  boat  or  vessel  seized  may  be  released  from  custody,  by  the 
master  or  owner  of  the  boat  or  vessel,  or  other  person,  entering  in|o  bond  with 
surety,  to  be  approved  by  the  sheriff,  in  double  the  amount  of  the  alle;;ed  injury, 
payable  to  the  plaintiff,  with  condition  to  satisfy  the  judgment  which  may  be  ren- 
dered on  the  attachment. 

§  3332  (3007). — Or  the  master,  owner,  or  some  person  for  him,  may  enter  into 
bond  with  surety,  in  double  the  estimated  value  of  the~  boat,  tackle,  apparel,  etc. , 
payable  to  the  j^Iaintiff,  with  condition  to  pay  the  plaintiff  the  value  of  the  vessel, 
or  boat,  her  tackle,  apparel,  etc.,  at  the  time  of  the  seizure,  or  so  much  thereof  as 
will  satisfy  the  judgment  and  costs;  and  for  the  purpose  of  ascertaining  the  value 
of  the  boat,  or  vessel,  her  tackle,  apparel,  etc.,  the  sheriff  may  api^oint  three  dis- 
interested persons  to  make  appraisement  thereof. 

§  3333  (3008). — The  obligors  in  the  bond  last  mentioned  may  pay  into  court, 
the  apijraised  value  of  the  boat  or  vessel,  and  such  pajTnent  is  a  discharge  of  the 
bond. 

§  3334  (3009).— If  either  of  the  above  bonds  be  executed,  the  obligors  therein  are 
the  defendants  in  the  attachment.  If  no  bond  be  executed,  to  release  the  boat  or 
vessel,  the  affidavit  must  be  received  as  evidence  of  the  facts  therein  stated,  and 
judgment  be  rendered  ex  j)a?-<(;,  for  the  demand  of  the  plaintiff,  which  may  be  at 
the  first  term  after  the  seizure,  if  the  attachment  was  issued  thii-ty  days  previous 
to  the  judgment. 

§  3335  (3010). — In  any  trial  under  this  article,  proof  that  the  loss  was  caused  by 
the  boat  or  vessel  attached  running  foul  of,  or  running  into,  the  boat  or  water-craft 
in  which  the  plaintiff's  property  was,  is  presimiptive  e^ddence  that  the  injury  was 
caused  by  the  negligence  or  want  of  skill  of  the  officers  of  such  boat;  and  tbitbiir- 
den  of  proof  is  then  cast  on  the  owners  of  such  boat,  of  proving  that  the  collision 
was  accidental,  and  mthout  the  fault  of  the  officers  thereof. 

§  3336  (3011).— If  no  bond  be  executed,  for  the  release  of  the  boat  from  seizure, 
within  sixty  days  thereafter,  the  sheriff  must  sell  the  same  for  cash,  giving  thii-ty 
days'  notice  of  the  time  and  place  of  sale,  and  make  retm-n  thereof  to  the  com-t  in 
which  the  attachment  is  pending. 


ALABAMA.  427 

§  3337  (3012). — WTien  there  are  more  attachments  than  one,  if  the  proceeds  of 
the  sale  arc  not  sufficient  to  discharge  all  tLe  judgments,  it  must  be  divided  among- 
them  ratably,  or  according  to  priority.  An  appeal  from  such  disposition  of  the 
fund  miist  be  prosecuted  within  six  months  thereafter. 

§  3338  (.3013).— The  bond»  required  by  this  article  to  release  the  boat  from  seiz- 
ure, must  be  iiled  in  the  clerk's  office,  and,  after  j udgment  in  favor  of  the  plaintiff, 
have  the  force  and  effect  of  judgments,  upon  which  execution  may  issue  for  the 
amount  of  such  judgment  and  costs. 

§  3339  (3014). — The  provisions  of  this  article  must  not  be  construed  so  as  to 
prevent  a  resort  to  any  other  legal  remedy. 

§  3340  (3015).— The  provisions  of  this  article  are  applicable  to  any  boat,  barge, 
vessel,  flat-boat  or  other  water-craft. 

NE   EXEAT,    EQUITABLE  ATTACHMENTS,    AND    OTHEE   WKIT3   OF   SEIZURE. 

§  3844  (3400). — Writs  of  ne  exeat,  and  equitable  attachments,  may  issue  on  eqm- 
table  debts  and  demands,  under  the  same  circumstances,  and  courts  must  observe, 
in  the  issue  of  such  -WTits,  the  provisions  of  courts  of  law  in  relation  to  attachment 
writs,  except  so  far  as  the  same  are  altered  by  this  code. 

§  3845  (3407). — Chancellors  may,  in  vacation,  examine  all  answers  in  relation  to 
writs  of  ne  exeat,  and  attachments  returnable  into  chancery,  and  other  UTits  of 
seizure,  discharge  or  reduce  any  bail  taken,  or  levy  made,  on  application  and  rea- 
sonable notice  to  the  adverse  party. 

§  3846  (3408). — Courts  of  chancery  may  also  issue  writs  of  attachment  on  legal 
demands,  founded  on  any  judgment  or  contract,  expressed  or  implied,  in  such  cases 
as  attachments  may  issue  from  courts  of  law;  which  attachments  operate  only  on 
the  effects  of  the  defendant  held  by  an  equitable  title,  or  on  demands  owing  by 
other  persons  to  which  the  defendant  against  whom  the  attachment  issues  is  in 
equity  entitled,  whether  due  or  not. 

§  3847  (3409).— To  authorize  the  issue  of  equitable  attachments,  it  is  not  neces- 
sary that  the  demand  of  the  plaintiff  should  be  reduced  to  a  judgment,  but  the 
coiu-t  may  render  a  decree  for  the  amount  proved,  and  execution  may  issue  to  en- 
force the  same  as  from  courts  of  law. 

§'3848  (3410). — Equitable  attachments  must  specify  the  property,  effects  or 
demands  on  which  they  are  intended  to  operate;  and  a  copy  of  the  biirmust  in  such 
cases  be  served  with  the  summons. 

§  3849  (3411). — Any  property  levied  on  by  an  equitable  attachment,  may  be 
replevied  by  the  defendant,  or  any  one  for  him,  on  giving  bond  and  seciurity  in 
double  the  value  of  the  property  levied  on,  to  be  api^roved  by  the  sheriff,  jjayable 
to  the  plaintiff,  and  conditioned  as  replevy  bonds  on  attachments  from  courts  of  law. 

§  3850  (3412). — When  i^roperty  levied  on  by  an  equitable  attachment  is  replevied, 
the  bond  must  be  returned  wth  the  attachment. 

§  3851  (3413).— Equitable  attachments  are  a  lien  upon  the  property  or  debts 
attached,  from  the  service  of  the  attachment. 

§  38.52  (3414). — If  a  decree  is  rendered  in  a  case  in  which  an  equitable  attach- 
ment has  been  levied,  sjiA  the  property  replevied  is  not  forthcoming  within  such 
time  as  the  court  may  direct,  to  be  ijroven  by  the  affidavit  of  the  party  before  the 
register,  the  replevin  bond  in  suftf  case  has  the  force  of  a  jud.gment,  and  execution 
ipay  issue  thereon  for  the  whole  or  any  ijortion  of  the  ijenalty,  as  the  court  may 
direct,  against  any  or  all  of  the  parties  thereto. 

§  3853  (3415). — Chancellors,  circuit  judges,  and  registers  of  the  court  in  which 
the  bill  is  tiled,  may  make  all  necessary  orders  for  the  issuing  of  writs  of  ne  exeat 
and  equitable  attachments,  and  for  the  sale  of  personal  property  levied  on,  as  in 
like  case's  from  courts  of  law;  the  money  arising  from  such  sale  to  be  paid  to  the 

register. 

§.^54.— In  every  cause  in  a  court  of  chancery,  where  the  suit  is  for  a  money 
demand,  and  upon  every  decree  in  that  court,  upon  which  execution  can  issue,  the 
writ  of  garnishment  may  be  issued  by  the  register. 

§  3855. — The  register,  before  issuing  any  such  writ,   shall  require  the  party 
.^pyilying  therefor  to  make  affidavit  and  give  bond,  one  or  both,  as  the  case  may  be, 
and  to  do  all  other  things  required  by  law  to  be  done,  in  order  to  obtain  a  Wit  of 
garnishment  in  the  cii'cuit  court. 


428  *  ALABAMA. 

§  5856. — Gamislimeiits  from  the  court  of  chancery  shall  he  goveme^l  liy  the  law 
regulating  garnishments  from  the  circuit  court,  as  far  as  the  same  may  he  appli- 
cable. 

§  3857  (3416). — Writs  may  also  issue  from  the  courts  of  chancery  on  an  original 
bill,  or  ill  aid  of  a  suit  pending  in  such  co\u-t,  by  the  order  of  any  chancellor,  judge 
of  the  circuit  court,  or  regi^^ti,/,  for  the  seizure  of  personal  property  ^vhere  the  same 
is  claimed  under  an  eciuitable  title,  or  ■\vhere  a  decree  is  sought  against  the  same, 
and  it  is  in  danger  of  being  wasted,  carried  beyond  the  jxu-isdiction  of  the  court, 
or  otherwise  disposed  of. 

§  3258  (3417). — The  plaintiff  in  such  case  must  sustaia  his  claim  by  affidavit, 
and  give  bond  with  security,  payable  to  the  defendant,  in  double  the  value  of  the 
projjerty,  to  be  approved  by  the  register,  conditioned  to  pay  all  damages  the  de- 
fendant may  sustain  by  the  WTongful  or  vexatious  suing  out  of  such  v,Tit. 

§  3859  (3418). — The  officer  executing  such  ^\Tit  must  restore  the  property  seized 
to  the  defendant,  on  his  giving  bond  in  double  the  value-  of  the  same,  with  security, 
to  be  approved  by  such  officer,  pa3'able  to  the  plaintiff,  and  conditioned  to  have 
such  property  forthcoming  to  answer  the  decree  of  the  court. 

§  38G0  (3419). — If  the  defendant  neglects  for  five  days  after  the  seizure  of  such 
property  to  give  such  bond,  the  sheriff  must  deliver  the  same  to  the  plaintiff,  on 
his  giving  bond  and  security  in  double  the  value  of  such  property,  to  be  approved 
by  the  sheriff,  payable  to  the  defendant,  conditioned,  if  unsuccessful  in  his  suit,  to 
return  such  ijroperty  within  thirty  days  after  its  determination. 

§  38G1  (.3420). — Such  ■\\Tits,  with  the  proper  return  thereon,  and  the  bonds  taken 
under  the  provisions  of  either  of  the  last  two  sections,  must  be  retmned  to  the  reg- 
ister of  the  court  from  which  the  WTit  issues. 

§  3862  (3421). — K  the  claim  of  the  plaintiff  is  sustained,  the  court  may  direct 
that  if  its  decree  in  relation  to  such  property  is  not  performed  within  a  specified 
time,  execution  may  issue  on  the  bond  of  the  defendant  for  all,  or  such  portion  of 
its  penalty  as  the  court  may  determine,  under  all  the  circmnstances. 

§  38G3  (3422). — If  the  plaintiff  is  unsuccessful,  and  faUs  to  deliver  the  property 
to  the  defendant  within  thirty  daj-s  after  the  determination  of  the  suit,  he  and  his 
sureties  are  liable  to  an  action,  and  in  case  of  a  recovery,  to  damages,  not  exceed- 
ing fifty  i^er  centum  on  the  value  of  the  property. 

§  3864  (3423). — -A  writ  of  attachment  may  be  issued  out  of  the  court  of  chancery, 

on  the  application  of  any  surety,  indorser,  accommodation  drawer,  acceptor,  cr 
maker,  of  any  bond,  biU,  or  note,  or  other  contract  in  writing,  against  the  princi- 
pal debtor,  to  be  levied  on  the  projjerty  or  effects  of  the  defendant,  whether  held 
by  a  legal  or  equitable  title,  whenever  such  surety,  indorser,  acceptor,  maker,  or 
drawer,  could  sue  out  an  attachment  at  law,  if  he  was  a  creditor  of  such  princiual 
debtor;  and  the  provisions  in  reference  to  attachments  at  law  must  be  observed  in 
the  issue  of  such  attachments,  and  such  writ  of  attachment  may  be  granted  by  the 
register  in  chancery. 

§3865(3424). — ^When  such  attachments  are  sued  out  by  any  indorser,  surety, 
acceptor,  maker,  or  drawer,  of  any  bond,  biU,  note,  or  other  contract  in  writing, 
not  due  and  payable,  such  attachment  must  be  dissolved,  on  application  to  the 
chancellor,  in  vacation  or  term  time,  or  by  the  register  in  vacation,  on  the  principal 
debtor  furnishing  the  comj)lainant  complete  indemnity  against  his  liability,  and 
paying  all  costs  which  may  have  accrued  on  such  attachment. 


Shares  of  any  incorporated  company  may  be  attached,  sold,  and  transferred, 
by  the  officer  making  the  sale,  with  or  without  possession  of  the  certificate,  in  the 
coimty  of  defendant's  residence  or  of  the  location  of  the  corporation,  but  notice 
must  be  given  to  the  secretary  or  cashier  of  the  corporation,  and  no  Hen  of  the  cor- 
poration shall  be  impaired  thereby. — §§  2041,  2045-2047. 

Exemptions— See  §§2820-2845,  and  Stats.  1879,  p.  167.  Attachment  by  land, 
lord— ^§  3472-3478.  Tenant  in  common— §§  3479,  3480.  On  crops— Stats.  1879, 
p.  167.  Agricultural  and  railroad  laborers — §§  3481-3493.  For  service  of  stallion — 
§  3496;  Stats.  18S3,  p.  157.  Liens  in  favor  of  workmen  and  blacksmiths— §§  3462. 
3464^    Before  justices  of  the  peace— §§  3682-3693. 

Xotaries  may  issue — Stats.  1883,  p.  22. 


ARIZOKA.  429 


ARIZONA. 

[Compiled  Laws,  1877,] 


ATTACHMENT. 

(255G)  §120. — The  plaintiff  at  the  time  of  issuing  his  si'mmons,  or  anytime 
afterward,  may  have  the  property  of  the  defendant  attached  as  security  for  the 
satisfaction  of  any  judgment  that  may  be  recovered,  unless  the  defendant  give  secu- 
rity to  pay  such  judgment  as  hereinafter  provided  in  the  following  cases:" 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct  payment  of 
money,  which  contract  was  made  or  is  payable  in  this  territory,  and  is  not  secured 
by  a  mortgage,  lien  or  pledge,  upon  real  or  personal  property,  or  if  so  secured,  that 
such  security  has  been  rendered  nugatory  by  the  act  of  the  "defendant. 

2.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct  payment  of 
money,  against  a  defendant  not  residing  in  this  territory. 

_  (2557)  §  121. — The  clerk  of  the  court  shall  issue  the  writ  of  attachment  upon  re- 
ceiving an  alSdavit  by,  or  on  behalf  of  the  plaintiff,  which  shall  be  hied,  showing; 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifyin'j  the  amount  of 
such  indebtedness,  over  and  above  all  legal  set-offs  or  counber-claims)  upon  a  con- 
tract express  or  implied,  for  the  direct  payment  of  money,  and  tliat  such  contract 
was  made  or  is  payable  in  this  territory,  and  that  the  payment  of  the  same  has 
not  been  secured  by  any  mortgage,  lien  or  pledge  upon  real  or  personal  property ;  or 

2.  _  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
Euch  indebtedness  as  near  as  may  be,  over  and  above  all  legal  set-offs  or  counter- 
claims), and  that  the  defendant  is  a  non-resident  of  this  territory;  and 

3.  That  the  sum  for  which  the  attachment  is  asked  is  a  bona  fide  existing  debt 
due  and  owing  from  the  defendant  to  the  plaintiff,  and  that  the  attachment  is  not 
sought  and  the  action  is  not  prosecuted  to  hinder,  delay  or  defraud  any  creditor 
or  creditors  of  the  defendant. 

(2558)  §  122. — Before  issuing  the  writ  the  clerk  shall  require  a  written  under- 
taking on  the  part  of  the  i^laintiff,  in  a  sum  not  less  than  tlie  amount,  claimed  by 
the  plaintiff,  with  sufficient  sureties,  to  the  effect  that  if  the  defendant  recover 
judgment,  or,  if  the  attachment  shall  be  discharged  on  the  ground  that  the  writ 
was  improperly  issued,  the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  sum  specified  in  the  undertaking.  The  defendant  may,  within 
two  days  after  the  service  of  the  writ  of  attachment,  give  notice  to  the  ijlaintiff 
that  he  excepts  to  the  sufficiency  of  the  siireties.  If  he  fails  to  do  so  he  shall  be 
deemed  to  have  waived  all  objections  to  them.  When  the  defendant  excepts,  the 
sureties  shall  justify  on  notice,  in  like  manner  as  upon  bail  or  arrest.  If  they,  or 
others  in  their  place,  fail  to  justify  at  the  time  and  place  appointed,  the  attachment 
may  be  discharged  on  the  ground  that  the  writ  was  improperly  issued.  [Amended 
Laws  1879,  p.  82.] 

(2559)  §  123. — The  writ  shall  be  directed  to  the  sheriff  of  any  county  in  which 
property  of  such  defendant  may  be,  and  require  him  to  attach  and  safely  keep  all 
the  property  of  such  defendant  within  his  county,  not  exempt  from  execution,  or 
so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount 
of  which  shall  be  stated  in  conformity  with  the  complaint,  unless  the  defendant 
give  him  security,  by  the  undertaking  of  at  least  two  sufficient  sureties  in  an 
amount  sufficient  to  satisfy  such  demands  with  costs,  or  in  any  amount  eqiial  to 
the  value  of  the  property  which  has  been,  or  is  about  to  be  attached,  i.i  ',-.liich 
case  the  sheriff  will  take  such  undertaking.  Several  writs  may  be  issued  at  the 
same  time  to  sheriffs  of  different  counties. 

(2560)  §  124. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock 
of  any  corporation  or  company,  together  'with  the  interest  and  i^rofits  thereon, 
and  ail  debts  due  such  defendant,  and  all  othei  property  in  this  territory  of  such 
defendant  not  exempt  from  execution,  may  be  attached,  ajid,  if  judgment  be  re- 
covered, be  sold  to  satisfy  the  judgment  and  execution. 


430  ARIZONA. 

{25G1)  §  125. — The  sheriff  to  whom  the  writ  is  directed  and  delivered  shall  exe- 
cute the  same  without  delay,  and  if  the  undertaking  mentioned  in  section  one 
hundred  and  twenty-three  be  not  given,  as  foUows: 

1.  Ileal  property  shall  be  attached  by  leaving  a  copy  of  the  writ  with  the  oc- 
cupant thereof ;  or,  if  there  be  no  occupant,  by  posting  a  cojjy  in  a  conspicuous 
place  thereon,  and  filing  a  copy,  together  with  a  description  of  the  property  at- 
tached, with  the  recorder  of  the  coimty. 

2.  Personal  property  capable  of  manual  delivery  shall  be  attached  by  taking 
it  into  custody. 

3.  Stock  or  shares,  or  interest  in  stock  or  shares,  of  any  corporation  or  com- 
pany, shall  be  attached  by  leaving  with  the  president,  or  other  head  of  the  same, 
or  secretary  or  cashier  or  managing  agent  thereof,  a  copy  of  the  writ,  and  a  notice 
stating  that  the  stock  or  interest  of  the  defendant  is  attached  in  pursuance  of  such 
writ. 

4.  Debts  and  credits,  and  other  personal  property,  not  capable  of  manual  de- 
livery, shall  be  attached  by  leaving  with  the  person  owing  such  debts,  or  having  in 
his  possession  or  under  his  control  such  credits  or  other  personal  property,  a  copy 
of  the  writ,  and  a  notice  that  the  debts  owing  by  him  to  the  defendant  or  the 
creditors,  and  other  personal  property  in  his  possession  or  under  his  control,  be- 
longing to  the  defendant,  are  attached  in  pursuance  of  such  writ. 

(25G2)  §  126. — Upon  receiving  information  in  writing  from  the  plaintiff,  or  his 
attorney,  that  any  person  has  in  his  possession  or  under  his  control,  any  credits  or 
other  personal  property  belonging  to  the  defendant,  or  is  owing  any  debt  to  the 
defendant,  the  sheriff  shall  serve  upon  such  person  a  copy  of  the  writ,  and  a 
notice  that  such  credits,  or  other  property  or  debts,  as  the  case  may  be,  are  at- 
tached in  pursuance  of  such  writ. 

(2563)  §  127. — All  persons  having  in  their  possession  or  tmder  their  control,  any 
credits  or  other  personal  property  belonging  to  the  defendant,  or  owing  any  debts 
to  the  defendant,  at  the  time  of  service  upon  them  of  a  copy  of  the  writ  and 
notice,  as  pro\'ided  in  the  last  two  sections,  shall  be,  unless  such  property  be 
delivered  up  or  transferred,  or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaint- 
iff for  the  amount  of  such  credits,  projierty  or  debt,  until  the  attachment  be  dis- 
charged, or  any  judgment  recovered  by  him  be  satisfied. 

(2564)  §  128. — Any  person  owing  debts  to  the  defendant,  or  having  in  his  pos- 
session or  under  his  control  any  credits  or  other  personal  property  belonging  to  the 
defendant,  may  be  required  to  attend  before  the  court  or  judge,  and  be  examined 
on  oath  respecting  the  same.  The  defendant  may  also  be  required  to  attend  for 
the  purpose  of  giving  information  respecting  his  property,  and  may  be  examined 
on  oath.  The  court  or  judge  may,  after  such  examination,  order  personal  property 
capable  of  manual  delivery  to  be  delivered  to  the  sheriff  on  such  terms  as  may  be 
just,  having  reference  to  any  liens  thereon,  or  claims  agalustthe  same,  and  a  mem- 
orandum to  be  given  of  all  other  personal  property,  containing  the  amount  and 
description  thereof. 

(2565)  §  129. — The  sheriff  shall  make  a  full  inventory  of  the  property  attached, 
and  return  the  same  with  the  writ.  To  enable  him  to  make  such  return  as  to  debts 
and  credits  attached,  he  shall  request,  at  the  time  of  service,  the  party  owing  the 
debt  or  having  the  credit  to  give  him  a  memorandum  stating  the  amount  and  de- 
scription of  each ;  and,  if  such  memorandum  be  refused,  he  shall  return  the  fact  of 
refusal  with  the  writ.  The  party  refusing  to  give  the  memorandum  may  be  re- 
quired to  pay  the  costs  of  any  proceedings  taken  for  the  purpose  of  obtaining  in- 
formation respecting  the  amount  and  description  of  such  debt  or  credit. 

(2566)  §  130. — If  any  of  the  property  attached  be  perishable,  the  sheriff  shall 
sell  the  same,  in  the  manner  in  which  such  property  is  sold  on  execution.  The 
proceeds  and  other  property  attached  by  him  shall  be  retained  by  him  to  answer 
anv  judgment  that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  exe- 
cution upon  another  judgment  recovered  previous  to  the  issuing  of  the  attach- 
ment. Debts  and  credits  attached  may  be  collected  by  him  if  the  same  can  be 
done  without  suit.  The  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the 
amount  paid.  WTienever  cattle,  horses,  mules,  sheep,  cows,  goats  or  hogs  have  been 
taken  by  ail  officer  under  a  ivrit  of  attachment,  and  it  is  made  to  appear  satisfac- 
tory to  the  court  or  a  jadge  thereof,  that  the  interest  of  the  parties  to  the  action 
will  be  subserved  by  a  sale  thereof,  the  court  or  judge  may  order  such  property  to 
be  sold  in  the  same  manner  as  property  is  sold  under  an  execution,  and  the  pro- 
ceeds to  be  deposited  in  the  comi;  to  abide  the  judgment  in  the  action.  Such  order 
can  be  made  only  ui3on  notice  to  the  adverse  party,  or  his  attorney,  in  case  such 

fnrtj  has  been  personally  served  with  a  summons  or  has  appeared  in  the  action. 
Amended  Laws  1879,  p.  82.] 


ARIZONA.  431 

(2567)  §131. — If  any  personal  property  attached  be  claimed  by  a  third  person 
as  his  propertj^,  the  sheriff  may  summon  a  jury  of  six  men  to  try  the  validity  of 
such  claim,  and  such  proceedings  shall  be  had  thereon,  with  the  like  effect,  aa  in 
case  of  a  claim  after  levy  upon  execution. 

(25G8)  §  132. — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall  satisfy 
the  same  out  of  the  property  attached  by  him  which  has  not  been  delivered  to  the 
defendant  or  a  claimant  as  hereinbefore  provided,  or  subjected  to  execution  on 
another  judgment  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be 
sufficient  for  that  purpose : 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property 
sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much  as  shall  be 
necessary  to  satisfy  the  judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  the 
judgment,  he  shall  sell  under  the  execution  so  much  of  the  property,  real  or  ijer- 
Bonal,  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose  re- 
main in  his  hands.  Notices  of  the  sales  shall  be  given,  and  the  sales  conducted  aa 
in  other  cases  of  sales  on  execution. 

(2569)  §  133. — If  after  selling  all  the  property  attached  by  him  remaining  in  his 
hands,  and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts  or 
credits  collected  by  him,  deducting  his  fees,  to  the  payment  of  the  judgment,  any 
balance  shall  remain  due,  the  sheriff  shall  proceed  to  collect  such  balance  as  uj^on 
an  execution  in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the 
sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the  defendant  the  attached 
property  remaining  in  his  hands  and  any  proceeds  of  the  property  attached  miap- 
plied  on  the  judgment. 

(2570)  §  134. — If  the  execution  be  retimied  unsatisfied,  in  whole  or  in  part,  the 
plaintiff  may  prosecute  any  undertaking  given,  pursuant  to  section  one  hundred 
and  twenty-three  or  section  one  hundred  and  thirty-seven,  or  he  may  jjroceed  as  in 
other  cases  upon  the  return  of  an  execution. 

(2571)  §  135 — If  the  defendant  recover  judgment  against  the  plaintiff,  any  un- 
dertaking received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by 
the  sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  shall  be 
delivered  to  the  defendant  or  his  agent ;  the  order  of  attachment  shall  be  dis- 
charged, and  the  property  released  therefrom. 

(2572)  §  136. — "Wlienever  the  defendant  shall  have  appeared  in  the  action,  he  may 
s-pply,  upon  reasonable  notice  to  the  plaintiff,  to  the  court  or  judge  thereof  for  an 
order  to  discharge  the  same,  upon  the  execution  of  the  undertaking  mentioned  in 
the  next  section ;  and,  if  the  application  be  granted,  all  the  jjroceeds  of  sales  and 
moneys  collected  by  the  sheriff,  and  all  the  property  attached  remaining  in  his 
hands  shall  be  released  from  the  attachment  and  delivered  to  the  defendant  upon 
the  j  ustification  of  the  sureties  on  the  undertaking,  if  required  by  the  plaintiff. 

(2573)  §  137. — Upon  such  application  the  defendant  shall  deliver  to  the  court  or 
judge  an  undertaking  executed  by  at  least  two  sureties,  residents  and  freeholders  in 
the  county,  to  the  effect  that  the  sureties  will,  on  demand,  pay  to  the  plaintiff  the 
amount  of  judgment  that  may  be  recovered  against  the  defendant  in  the  action, 
not  exceeding  the  sum  specified  in  the  undertaking,  which  shall  be  sufficient  to 
satisfy  the  amount  claimed  by  the  plaintiff  in  his  complaint,  and  the  costs.  The 
sureties  may  be  required  to  justify  on  application  before  the  judge  or  court,  and 
the  property  attached  shall  not  be  released  from  the  attachment  mthout  then-  jus- 
tification, if  the  same  be  required. 

(2574)  §  138. — The  defendant  may,  also,  any  time  before  the  time  for  answering 
expires,  apply,  on  motion,  upon  reasonable  notice  to  the  plaintiff,  to  the  judge  who 
made  the  order  or  the  court  in  which  the  action  is  brought,  that  the  attachment  be 
discharged  on  the  ground  that  the  writ  was  improperly  issued. 

(2575)  §  139. — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defend- 
ant, but  not  otherwise,  the  i^laintiff  may  oppose  the  same  by  affidavits  or  other 
evidence,  in  addition  to  those  on  which  the  order  of  attachment  was  made. 

(2676)  §  140. — If  upon  such  application  it  shall  satisfactorily  appear  that  the 
writ  of  attachment  was  improperly  issued,  it  shall  be  discharged. 

(2577)  §  141. — Upon  the  return  of  the  writ  of  attachment,  the  defendant  may 
file  his  answer  under  oath,  putting  in  issue  the  truth  of  the  matters  contained  in 
the  affidavit,  aud  the  same  shall  be  tried  as  a  preliminary  issue  in  the  cause ;  and  if 
the  affidavit  is  not  sustained  the  attachment  shall  be  dissolved,  and  the  suit  shall 
proceed  as  if  commenced  by  an  ordinary  summons;  and  the  plaintiff,  upon  the  dis- 


432  ARKANSAS. 

Bokition  of  the  attachment,  shall  be  adjudged  to  pay  all  the  costs  of  the  attach- 
ment and  the  damages  sustained  thereby,  to  be  determined  as  in  ordinary  actions 
for  damages. 

(2578)  §  142.^TTpon  the  return  of  the  ^^T-it  of  attachment,  if  it  appear  to  the 
court  that  an  excess  of  property  has  been  attached,  the  court  may,  by  order,  re- 
duce the  amount  to  what  will  be  sufficient  to  satisfy  the  demands  of  the  plaintiff, 
with  costs. 

(2570)  §  143. — The  sheriff  shall  return  the  writ  of  attachment  with  the  sum- 
mons, if  issued  at  the  same  time ;  otherwise,  within  twenty  days  after  its  receiy)t, 
with  a  certificate  of  his  proceedings  indorsed  thereon  or  attached  thereto.  The 
provisions  of  this  chapter  shall  not  apx^ly  to  any  suits  by  attachment  already 
commenced. 


Attachment  before  justices  of  the  peace— §§2989-2995r- Stats.  188.3,  p.  2,5,  §  1. 
Against  vessels — §§  2759-27C7.  On  mechanic's  lien — Stats.  1885,  p.  224.  For  labor- 
er's wages— Stats.  1883,  p.  29,  §  3.  Grarnishment  for  road  tax — §  3495.  Exemp- 
tions—§§  2140,  2150,  and  Stats.  1881,  p.  173. 


ARKANSAS. 

[Gantt's  Digest,  and  Subsequent  Statutes.] 


GEOUNDS  OF  ATTACHMENT. 

§  388. — The  plaintiff  in  a  civil  action  may,  at  or  after  the  commencement 
thereof,  have  an  attachment  against  the  property  of  the  defendant,  in  the  cases 
and  upon  the  grounds  hereinafter  stated,  as  a  security  for  the  satisfaction  of  such 
judgment  as  may  be  recovered: 

First.  In  an  action  for  the  recovery  of  money,  where  the  action  is  against — 

1.  A  defendant,  or  several  defendants,  who,  or  some  one  of  whom,  is  a  foreign 
corporation,  or  a  non-resident  of  the  state;  or, 

2.  Who  has  been  absent  therefrom  four  months;  or, 

3.  Has  departed  from  this  state  with  intent  to  defraud  his  creditors;  or, 

4.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or, 

5.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or, 

6.  Is  about  to  remove,  or  has  removed,  his  property,  or  a  material  part  thereof, 
out  of  this  state,  not  leaving  enough  therein  to  satisfy  the  plaintiff 's  claim,  or  the 
claim  of  said  defendant's  creditors;  or, 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or  suffered  or 
permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat,  hinder,  or  delay  his 
creditors;  or, 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property  with  such 
intent.  But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defend- 
ant, or  defendaifts,  or  any  of  them,  is  a  foreign  corporation  or  a  non-resident  of 
this  state,  for  any  claim  other  than  a  debt  or  demand  arising  upon  contract. 

9.  The  cause  of  attachment  mentioned  in  the  preceding  subdivisions  against 
one  or  more  defendants  to  a  civil  action  shall  not  authorize  an  attachment  against 
any  of  the  defendants  who  are  not  embraced  in  any  of  said  subdivisions,  but  the 
estate  or  interest  of  such  defendants  only  as  are  embraced  therein  shall  be  subject 
to  attachment. 

Second.  In  an  action  to  recover  possession  of  personal  property  where  it  has 
been  ordered  to  be  delivered  to  the  plaintiff,  and  where  the  property,  or  part 
thereof,  has  been  disposed  of,  concealed,  or  removed,  so  that  the  order  for  its 
delivery  cannot  be  executed  by  the  officer.     [Civil  Code,  sec.  216.] 

HOW   OBTAINED. 

§  389. — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought  in  any  case  mentioned  in  the  first  subdivision  of  the 


ARKANSAS.  43  3» 

preceding  section,  wtere  there  is  filed  in  his  office  an  affidavit  of  the  plaintiff,  or- 
of  some  one  in  his  behalf,  showing- — 

First.  The  nature  of  the  plaintiff 's  claim. 

Second.  That  it  is  just. 

Third.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover;; 
and, 

Fourth.  The  existence  in  the  action  of  some  one  of  the  grounds  for  an  attach- 
ment enumerated  in  that  subdivision,  and  in  the  case  mentioned  in  the  second 
subdivision  of  the  preceding  section,  where  it  is  shown  by  such  affidavit,  or  by 
the  return  of  the  sheriff  or  other  officer  upon  the  order  for  the  delivery  of  the 
property  claimed,  that  the  facts  mentioned  in  that  subdivision  exist'.  [Civil  Code, 
sec.  217,  as  amended  1871.] 

§  390.— When  the  return  by  the   proper  officer  upon  a  summons   against   a . 
defendant  states  that  he  has  left  the  county  to  avoid  the  service  of  the  summons, 
or  has  concealed  himself  therein  for  that  purpose,  it  shall  be  equivalent  to  the 
statement  of  the  fact  in  the  affidavit  mentioned  in  the  last  section. 

§391. — The  order  of  attachment  shall  not  be  issued  by  the  clerk  until  there- 
has  been  executed  in  his  office,  byone  or  more  sufficient  sureties  of  the  23laintiff, 
a  bond  to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all  damages 
which  he  may  sustain  by  reason  of  the  attachment,  if  the  order  is  -nTongfully 
obtained. 

§  392. — The  order  of  attachment  shall  be  directed  and  delivered  to  the  sheriff  or  ■ 
other  officer,  with  as  many  copies  thereof  as  the  plaintiff  may  direct.  It  shall 
require  him  to  attach  and  safely  keep  the  property  of  the  defendant  in  his 
county,  not  exempt  from  execution,  or  so  much  thereof  as  will  satisfy  the 
plaintiff's  claim  specified  in  his  affidavit,  which  shall  be  stated  in  the  oi'der,  and ' 
the  probable  costs  of  the  action,  not  exceeding  thirty  dollars;  also,  to  summon  - 
the  garnishees  to  answer  in  the  action  on  the  return  day  of  the  order,  and  to 
make  due  return  thereof.  The  return  day  of  the  order  of  attachment,  when  issued 
at  the  commencement  of  the  action,  shall  be  the  same  as  that  of  the  summons; . 
when  issued  afterward,  it  may  be  another  day  in  term,  at  the  option  of  the 
plaintiff. 

§  393.— Orders  of  attachment  may  be  issued  to  the  sheriffs  or  other  officers  • 
of  other  counties,  and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued ' 
at  the  same  time,   or  in  succession.      But  such   only  as  have  been  executed  in 
whole  or  in  i^art  shall  be  taxed  in  the  costs,  unless  otherwise  directed  by  the 
court. 

§  394.— The  affidavit  or  grounds  of  attachment  may  be  amended  so  as  to 
embrace  any  grounds  of  attachment  that  may  exist  up  to  and  until  the  final  judg- 
ment upon  the  same.  If  the  amendment  embrace  grounds  existing  at  the  time  of 
the  commencement  of  said  proceeding,  and  is  sustained  upon  such  grounds,  the 
lien  created  by  the  suing  out  or  levying  of  the  original  attachment  shall  be  held  . 
good;  but  if  the  amendments  embrace  new  grounds  not  existing  at  the  time  of  ' 
suing  out  the  original  attachment,  and  the  attachment  shall  be  sustained  on  such 
new  grounds  only,  the  lien  shall  exist  on  the  property  levied  upon  from  the  filing 
of  the  same;  and  a  general  order  sustaining  the  attachment,  without  designating 
the  grounds  upon  which  it  is  sustained,  shall  be  equivalent  to  sustaining  the  same 
on  grounds  that  existed  at  the  time  the  attachment  was  sued  out. 

§  395. — Attachments  may  be  sued  out,  and  the  actions  in  which  the  same  are 
obtained  may  be  prosecuted  in  any  county  in  which  property  may  lie  attached,  or 
a  garnishee,  who  is  indebted  or  has  property  belonging  to  the  defendant,  is  served 
with  i^rocess.     [Civil  Code,  sees.  218-223.] 

§  396. — Whenever,  in  a  civil  action,  the  jjlaintiff  shall  have  reason  to  believe 
that  any  other  person  is  indebted  to  the  defendant,  or  has  in  his  hands  or  posses- 
sion goods  and  chattels,  moneys,  credits,  and  effects  belonging  to  such  defendant, 
the  plaintiff  may  sue  out  a  -writ  of  garnishment,  setting  forth  his  cause  of  action 
against  the  defendant,  and  commanding  the  officer  charged  with  the  execution 
thereof  to  summon  the  person  therein  named  as  garnishee,  to  appear  at  the  return 
day  of  the  summons  in  the  action,  if  the  -wiit  shall  have  been  issued  at  the  com- 
mencement thereof;  and,  if  not  so  issued,  on  such  day  as  the  court  shall  designate, 
to  answer  what  goods,  chattels,  moneys,  credits,  and  effects  he  may  have  in  his 
hands  or  possession  belonging  to  such  defendant;  and  in  all  such  actions,  where 
the  plaintiff  shall  have  obtained  judgment,  he  may  sue  out  a  -writ  of  garnishment, 
Betting  forth  such  judgment,  and  shall  proceed  in  the  manner  herein  directed  for. 

the  enforcement  and  collection  thereof.  •-..<^..--. 

II  Attacumknt— 3. 


434  ARKANSAS. 

§  397. — The  plaintiffs  in  all  cases  of  garnishment  may  also  have  an  attachment 
ap-ainst  the  property  of  a  garnishee,  -who  is  made  a  defendant  thereto,  by  stating  in 
his  afiidavit  some  one  or  more  of  the  grounds  of  attachment  mentioned  in  this 
chapter,  and  the  amount  which  the  garnishee  is  indebted  to  the  principal  debtor, 
and  executing  bond  to  said  garnishee.     [Civil  Code,  sec.  224,  as  amended  1871.] 

EXECUTION  AND   EETUKN   OF. 

§  398.  — "^^Tiere  there  are  several  orders  of  attachment  against  the  same  defend- 
ant, they  shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff 
or  other  officer. 

_  §  399.  — The  order  of  attachment  shall  be  executed  by  the  sheriff  or  other  officer 
without  delay,  in  the  following  manner: 

First.  Upon  real  property,  by  leaving  with  the  occupant  thereof,  or,  if  there  is 
no  occupant,  in  a  conspicuous  place  thereon,  a  copy  of  the  order. 

Second.  Upon  personal  property,  capable  of  manual  delivery,  by  taking  it  into 
his  custody,  and  holding  it  subject  to  the  order  of  the  court. 

Third.  Upon  other  personal  property,  by  delivering  a  copy  of  the  order,  with 
a  notice  specif  jnng  the  property  attached,  to  the  person  holding  the  same;  or  as  to 
a  debt  or  demand,  to  the  person  owing  it;  or  as  to  stock  in  a  corporation,  or  prop- 
erty held,  or  a  debt  or  demand  owing  by  it,  to  the  chief  officer,  or  to  the  secretary, 
cashier,  treasurer,  or  managing  agent  thereof,  and  by  summoning  the  person  or 
corporation  to  answer  as  a  garnishee  in  the  action.  The  sheriff  shall  deliver 
copies  to  and  summon  such  persons  as  garnishees  as  the  plaintiff  may  direct. 

§  400. — It  shall  be  the  duty  of  every  person  mentioned  in  the  third  subdivision 
of  the  last  section,  to  whom  the  sheriff  shall  apply  therefor,  to  furnish  him  with  a 
certificate  of  the  number  of  shares  of  the  defendant  in  the  stock  of  the  corporation, 
a  description  of  the  property  held  by  such  corporation  or  person  belonging  to  or 
for  the  benefit  of  the  defendant,  or  the  amount  of  the  debt  owing  to  the  defendant, 
by  puch  corporation  or  person,  whether  due  or  not;  and  a  failure  to  perform  this 
duty  may  be  punished  by  the  court  as  a  contempt. 

§  401. — The  defendant's  personal  property  shall  be  first  taken  under  an  attach- 
ment; if  enough  thereof  is  not  found,  then  his  real  property. 

§  402. — Where  the  property  to  be  attached  is  a  fund  in  comi;,  the  execution  of 
the  order  of  attachment  shall  be  by  leaving  vAih.  the  clerk  of  the  court  a  copy 
thereof,  with  a  notice  specifying  the  fund;  and  where  several  orders  of  attachment 
are  executed  upon  such  fund  on  the  same  day,  they  shall  be  satisfied  out  of  it 

ratably. 

§  403. — The  sheriff  shall  not,  in  executing  an  order  of  attachment  upon  personal 
property  held  by  the  defendant  jointly  or  in  common  with  another  jjerson,  take 
possession  of  such  property  imtil  there  has  been  executed  a  bond  to  such  other 
person,  by  one  or  more  sufficient  sureties  of  the  plaintiff,  to  the  effect  that  he  shall 
pay  to  such  person  the  damages  he  may  sustain  by  the  wrongful  suing  out  of  the 
order.     [Civil  Code,  sees.  225-231.] 

§  404. — An  order  of  attachment  binds  the  defendant's  property  in  the  county, 
which  might  be  seized  under  an  execution  against  him,  from  the  time  of  the 
delivery  of  the  order  to  the  sheriff  or  other  officer;  and  the  lien  to  the  plaintiff  is 
completed  upon  any  property  or  demand  of  the  defendant,  by  executing  the  order 
upon  it  in  the  manner  directed  in  this  chapter.  [Civil  Code,  sec.  232,  as  amended 
1871.] 

§  40.5. — If,  after  an  order  of  attachment  has  been  placed  in  the  hands-  of  the 
sheriff  or  other  officer,  any  property  of  the  defendant  is  removed  from  the  county, 
the  sheriff  ma  v  piu-sue  and  attach  the  same  in  another  county  within  twenty -four 
hours  after  removal. 

§  40G. — The  sheriff  may  deliver  any  attached  property  to  the  person  in  whose 
possession  it  was  foimd,  upon  the  execution,  in  the  presence  of  the  sheriff,  of  a 
bond  to  the  plaintiff,  bj'  such  person,  with  one  or  more  sufficient  sureties,  to  the 
efTect  that  the  obligors  are  bound,  in  double  the  value  of  the  property,  that  the 
defendant  shall  perform  the  judgment  of  the  coiirt  in  the  action,  or  that  the  prop- 
erty, or  its  value,  shall  be  forthcoming,  and  subject  to  the  orders  of  court  for  the 
satisfaction  of  .such  judgment. 

§  407. — For  the  purpose  of  taking  this  bond,  the  sheriff  shall  cause  the  property 
to  be  appraised  l)}^  three  disinterested  householders,  to  be  selected  and  sworn  by 
him  to  make  fair  ax^^raisement  on  the  order  of  attachment. 


ARKANSAS.  435 

§  408.— In  nny  proceeding  on  this  Ijond,  it  shall  not  be  a  defense  that  the  prop- 
erty was  not  subject  to  the  attachment. 

§  409. — The  sheriff  shall  return,  upon  every  order  of  attachment,  what  he  has 
done  under  it.  The  return  must  show  the  property  attached,  the  time  it  wa3 
attached,  and  the  disposition  made  of  it.  Where  garnishees  are  summoned,  their 
names,  and  the  time  each  was  summoned,  must  be  stated.  And  where  real  prop- 
erty is  attached,  the  sheriff  shall  describe  it  with  sufficient  certainty  to  identify  it, 
and,  where  he  can  do  so,  a  reference  to  the  deed  or  title  under  which  the  defendant 
holds  it.  He  shall  return  with  the  order  aU  bonds  taken  under  it.  f  Civil  Code, 
sees.  233-237.] 

DISPOSITION  OP  ATTACHED  PEOPERTT. 

§  410. — The  court  shall  make  proper  orders  for  the  preservation  and  use  of  the 
property  during  the  pending  of  the  action,  and  for  paying  into  court  or  securing 
the  debt3_  and  funds  attached.  It  may  direct  a  sale  of  the  property  where,  by 
reason  of  its  perishable  nature,  or  of  the  cost  of  keeping  it,  a  sale  would  be  for  the 
benefit  of  the  parties. 

§  411.— Such  sale  may  be  ordered  by  the  judge  of  the  court  in  vacation,  but  no 
such  sale  shall  be  made  in  vacation  without  reasonable  notice  in  writing  to  the 
opposite  party  or  his  attorney,  if  either  of  them  reside  in  the  county  in  which  the 
cause  is  pending,  of  the  time  and  place  of  the  application  therefor. 

§  412.— The  sale  shall  be  public,  after  advertisement,  and  made  in  such  manner, 
and  upon  such  terms  of  credit  with  security,  as  the  court  or  judge,  having  regard 
to  the  probable  duration  of  the  action,  may  direct. 

§  413. — The  proceeds,  if  collected  by  the  sheriff,  together  with  all  the  money 
received  by  him  from  garnishees,  shall  be  held  and  paid  over  by  him  under  the 
same  requirement  and  responsibilities  of  himself  and  his  sureties  as  are  provided 
in  respect  to  money  deposited  in  lieu  of  bail.  [CivU  Code,  sec.  238,  as  amended 
1871.] 

§  414. — A  judge  of  the  com-t  in  which  the  action  is  brought,  or  any  circuit 
judge,  shall  have  power  to  appoint  a  receiver  to  take  charge  of,  collect,  and  account 
for  all  choses  in  action,  attached  in  any  action;  and  said  receiver  shall  have  full 
power  to  collect  the  same. 

He  shall  give  bond,  and  in  all  respects  be  subject  to  the  same  responsibilities  as 
if  appointed  by  the  court  in  term  time.  And  the  defendant  or  any  claimant  of 
any  attached  property  may  be  required  by  the  court  or  by  such  receiver  to  give 
information,  on  oath,  respecting  such  property.  [lb.,  sec.  239,  and  sec.  791  as 
amended  1873.1 

§  415. — When  it  appears  by  the  affidavit  of  the  plaintiff,  or  by  the  return  of  an 
officer  to  an  order  of  attachment,  that  no  property  is  known  to  the  plaintiff,  or  the 
officer,  on  which  the  order  of  attachment  can  be  executed,  or  not  enough  to  satisfy 
the  plaintiff's  claim,  the  defendant  may  be  required  by  the  court  to  attend  before 
it  and  give  information,  on  oath,  respecting  his  property;  and  where  it  also  appears, 
by  the  affidavit  of  the  plaintiff,  that  some  person  other  than  the  defendant  has  in 
his  possession  property  of  the  defendant,  or  evidences  of  debt,  such  person  may 
also  be  required  by  the  court  to  attend  before  it  and  give  information,  on  oath, 
respecting  the  same. 

PROCEEDINGS  UPON  ATTACHMENT. 

§416. — If  the  defendant,  at  any  time  before  judgment,  causes  a  bond  to  be 
executed  to  the  plaintiff  by  one  or  more  safficieat  sureties,  to  be  approved  by  the 
court,  to  the  effect  that  defendant  shall  perform  the  judgment  of  the  court,  the 
attachment  shall  be  discharged,  and  restitution  made  of  any  property  taken  under 
it,  or  the  proceeds  thereof. 

§  417. — The  execution  by  or  for  the  defendant  of  such  bond,  shall  be  an  appear- 
ance of  such  defendant  in  the  action.     [Civil  Code,  sec.  793.] 

§  418. — The  bond  mentioned  in  the  last  two  sections  may,  in  vacation,  be 
executed  in  the  presence  of  the  sheriff  having  the  order  of  attachment  in  his  hands, 
or,  after  the  return  of  the  order,  before  the  clerk,  -with  the  same  effect  upon  the 
attachment  as  if  executed  in  court;  the  sureties,  in  either  case,  to  be  approved  by 
the  officer. 

§  419.— The  garnishee  may  pay  the  money  owing  to  the  defendant  by  him  to  the 
sheriff  having  in  his  hands  the  order  of  attachment,  or  into  the  court.  He  shall  be 
discharged  from  liability  to  the  defendant  for  any  money  so  paid  not  exceeding  the 
plaintiff's  claim.    He  shall  not  be  subjected  to  costs  beyond  those  caused  by  his 


436  ARKANSAS. 

resistance  of  the  claim  against  him;  and  if  he  discloses  the  property  of  the  defend- 
ant in  his  hands,  or  the  true  amount  owin'j  by  him,  and  delivers  or  pays  the  same 
according  to  the  order  of  the  court,  he  shall  be  allowed  his  costs. 

§  420. — Each  tjamishee  summoned  shall  appear.  The  appearance  may  be  in 
person,  or  by  affidavit  of  the  garnishee  filed  in  court,  disclosing  truly  the  amount 
0'v\dng  by  him  to  the  defendant,  whether  due  or  not,  and  the  property  of  the 
defendant  in  the  possession  or  under  the  control  of  the  garnishee;  and,  in  the  case 
of  a  corporation,  any  shares  of  stocks  therein  held,  by  or  for  the  benefit  of  the 
defendant,  at  or  after  the  service  of  the  order  of  attachment. 

§  421.  — Where  a  garnishee,  or  officer  of  a  corporation  summoned  as  a  gar- 
nishee, appears  in  person,  he  may  be  examined  on  oath;  and  if  it  is  discovered  on 
such  examination  that,  at  or  after  the  service  of  the  order  of  attachment  upon  him, 
he  or  the  corporation  was  possessed  of  any  property  of  the  defendant,  or  was 
indebted  to  him,  the  court  may  order  the  delivery  of  such  property,  and  the  pay- 
ment or  security  for  the  paj-ment  of  the  amount  owing  by  the  garnishee  into  the 
court,  or  to  such  person  as  it  may  direct,  who  shall  give  bond,  with  security  for  the 
same;  or,  the  com-t  may  permit  the  garnishee  to  retain  the  property  or  the  amount 
owing,  upon  the  execution  of  a  bond,  with  one  or  more  suflScient  sureties,  to  the 
effect  that  the  amount  shaU  be  paid  or  the  property  shal]  be  forthcoming,  as  the 
court  may  direct.  Performance  of  these  bonds  may  be  summarily  enforced  by 
orders  and  proceedings  as  in  cases  of  contempt. 

§422. — The  court  may,  on  the  motion  of  the  plaintiff,  compel  the  appearance 
m  i^erson  and  examination  of  any  garnishee,  or  officer  of  a  corporation  summoned 
as  a  garnishee,  by  process  as  in  cases  of  contempt;  or,  where  a  garnishee  makes  a 
default  Ijy  not  appearing,  it  may  hear  proof  of  any  debt  or  property  owing  or  held 
hy  him  to  or  for  the  defendant,  and  make  such  order  in  relation  thereto  as  if  what 
is  so  proved  had  appeared  on  the  examination  of  the  garnishee. 

§  423. — Upon  the  service  of  a  summons  upon  any  garnishee,  or  after  his  failure 
to  make  a  disclosure  satisfactory  to  the  plaintiff,  the  latter  may  proceed  in  an 
action  against  him  by  filing  a  complaint,  verified  as  in  other  cases,  and  causing  a 
summons  to  be  issued  upon  it;  and,  thereupon,  such  proceeding  may  be  had  as  in 
other  actions,  and  judgment  be  rendered  in  favor  of  the  plaintiff  to  subject  the 
property  of  the  defendant  in  the  hands  of  the  garnishee,  or  for  what  shall  appear 
to  be  owing  to  the  defendant  by  the  garnishee.  The  judgment  may  be  enforced 
by  execution  or  other  proper  means. 

§  424.— If  judgment  is  rendered  in  the  action  for  the  defendant,  the  attachment 
shall  be  discharged,  and  the  property  attached,  or  its  proceeds,  shall  be  returned  to 
him. 

§  425. — If  judgment  is  rendered  for  the  plaintiff,  the  court  shall  apply  in  satis- 
faction thereof — 

First.  The  moneys  arising  from  the  sales  of  perishable  property. 

Second.  The  proceeds  of  the  debts  and  funds  attached  in  the  hands  of  the  gar- 
nishees. If  these  are  not  sufficient  to  satisfy  the  plaintiff's  claim,  the  court  shall 
order  a  sale,  by  the  sheriff,  of  any  other  attached  property  which  may  be  under  its 
control,  in  the  following  order: 

1.  Personal  property. 

2.  Peal  property,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the  plaint- 
iff's claim. 

§  426. — No  order  for  the  sale  of  real  property  so  attached  shaU  be  made  in  any 

action  in  which  the  defendant  has  not  appeared  or  been  actually  summoned,  until 
there  has  been  filed  an  affidavit  of  the  plaintiff,  or  of  his  agent  or  attorney,  to  the 
effect  that  the  defendant  has  no  personal  i^roperty,  or  not  enough  to  satisfy  the 
claim  of  the  plaintiff,  in  this  state,  known  to  the  affiant. 

§  427.  — Any  surplus  of  the  attached  property,  or  its  proceeds,  shall  be  returned 
to  the  defendant. 

§  428. — The  sales  shall  be  public,  upon  such  notice  and  at  such  time  and  place 
as  the  court  may  direct.  When  credits  are  given,  bonds,  with  security,  shall  be 
required ;  and  the  credit  shall  not  be  longer  than  three  months  for  personal  prop- 
erty, and  not  less  than  three  or  more  than  twelve  months  for  real  property,  or  on 
installments  equivalent  to  not  more  than  twelve  months'  credit  on  the  whole ;  and 
upon  real  property  a  lien  shall  be  retained.  The  sales  shall  be  subject  to  the  con- 
firmation of  the  comrt. 

§  429. — The  court  may  compel  the  delivery  to  the  sheriff,  for  sale,  of  any  of  the 
attached  property,  for  which  a  bond  may  have  been  given,  and  may  proceed  sum- 


ARKANSAS.  437 

marily  on  such  bond  to  enforce  the  delivery  of  the  property  or  the  pa3mient  of 
such  sums  as  may  be  due  upon  the  bond,  by  rules  and  attachments  as  in  cases  of 
contemi)t. 

§430. — The  court  may,  from  time  to  time,  make  and  enforce  proper  orders 
respcctiui,'  the  property,  sales,  and  the  confirmation  thereof,  and  the  application 
and  jiayment  of  the  moneys  collected. 

§  431. — It  may  order  the  sheriff  to  repossess  himself,  for  the  purpose  of  selling 
it,  of  any  of  the  attached  property  which  may  have  passed  out  of  his  hands, 
without  havinj  been  sold  or  converted  into  money ;  and  the  sheriif  shall,  under 
such  order,  have  the  same  power  to  take  the  property  as  upon  an  order  of  attach- 
ment. 

§  432. — Any  person  may,  before  the  sale  of  any  attached  property,  or  before 
the  payment  to  the  plaintiif  of  the  proceeds  thereof,  or  of  any  attached  debt,  pre- 
sent hli  complaint,  verified  by  oath,  to  the  court,  disputing  the  validity  of  the 
attachment,  or  statin'j  a  claim  to  the  property,  or  an  interest  in  or  lien  on  it 
undjr  any  other  attachment,  or  otherwise,  and  setting  forth  the  facts  upon  which 
6uch  claim  is  founded,  and  his  claim  shall  be  investigated. 

§  433. — A  non-resident  claimant  shall,  in  such  cases,  give  security  for  costs. 

§434. — The  court  may  hear  the  proof,  or  may  order  a  reference  to  a  commis- 
sioner, or  may  impannel  a  jury  to  inquire  into  the  facts.  If  it  is  found  that  the 
claimant  has  a  title  to,  a  lien  on,  or  any  interest  in  such  property,  the  court  shall 
make  such  order  as  may  be  necessary  to  protect  his  rights.  The  costs  of  this 
proceeding  shall  be  paid  by  either  party,  at  the  discretion  of  the  court. 

§  435. — Where  several  attachments  are  executed  on  the  same  property,  the 
court,  on  the  motion  of  any  one  of  the  attaching  plaintiffs,  may  order  a  reference 
to  a  commissioner  to  ascertain  and  rejjort  the  amounts  and  priorities  of  the  several 
attachments. 

§433. — The  defendant  may,  at  any  time  before  judgment,  after  reasonable 
notice  to  the  jjlaintiif,  move  the  court  for  additional  security  on  the  ^lart  of  the 
plaintiff,  and  if,  on  such  motion,  the  coiu-t  -s  satisfied  that  the  surety  in  the 
plaintiff's  bond  has  removed  from  this  state,  or  is  not  sufficient  for  the  amount 
thereof,  it  may  vacate  the  order  of  attachment,  and  direct  restitution  of  any  prop- 
erty taken  under  it,  unless  in  a  reasonable  time,  to  be  fijsed  by  the  court,  sufficient 
security  is  given  by  the  plaintiff. 

ATTACHMENTS,  BEFOEE  DEBT  DUE. 

§  437. — In  an  action  brought  by  a  creditor  against  his  debtor,  the  plaintiff 
may,  before  his  claim  is  due,  have  an  attachment  against  the  property  of  the 
debtor,  where — 

First.  He  has  sold,  conveyed,  or  otherwise  disposed  of  his  property,  or  suffered 
or  permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat  or  defraud  his 
creditors,  or  to  hinder  or  delay  them  in  the  collection  of  their  debts;  or, 

Second.  Is  about  to  make  such  fraudulent  sale,  conveyance,  or  disposition  of 
his  property  with  such  intent;  or, 

Third.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  out  of  this 
state,  with  the  intent  or  to  the  effect  of  cheating  or  defrauding  his  creditors,  or 
of  hindering  or  delaying  them  in  the  collection  of  their  debts.  [Civil  Code,  sees. 
241-2o9.] 

§  438. — The  attachment  authorized  by  the  last  section  may  be  granted  by  the 
court  in  which  the  action  is  brought,  or  the  clerk  or  judge  thereof,  or  any  circuit 
judge,  in  vacation,  where  the  complaint,  verified  by  the  oath  of  tlie  plaintiff,  his 
agent  or  attorney,  shows  any  of  the  grounds  for  attachment  enmnerated  in  that 
section,  and  the  nature  and  amount  of  the  plaintiff's  claim,  and  when  the  same  will 
bjcom3  due.  [Civil  Code,  sec.  2J0,  as  amended  1871,  and  sec.  701,  as  amended 
Stat.  1881,  p.  99.] 

§  430. — The  order  of  the  court  or  judge  granting  the  attachment  shall  specify 
the  amount  for  which  it  is  allowed,  not  exceeding  a  sum  sufficient  to  satisfy  the 
plaintiif  s  claim,  and  the  probable  costs  of  the  action. 

§410. — The  order  of  attachment,  as  granted  by  the  court  or  judge,  shall  not 
be  issued  by  the  clerk  until  :bere  has  been  executed  in  his  office  such  bond  on 
the  part  of  the  plaintiff,  as  is  dhected  in  cases  of  attachment;  and  the  provi- 
sioiij  <jf  t'ais  chapter,  so  far  as  they  are  applicable,  shall  apply  to  attachments  for 
debts  not  due. 


438  ARKANSAS. 

ATTACHMENTS  SPECIFIO. 
§  441. — In  an  action  to  enforce  a  mortg-age  of,  or  Hen  upon,  personal  property, 
or  for  the  recovery,  partition  or  sale  of  such  property,  or  by  a  plaintiff  having  a 
future  estate  or  interest  therein,  for  the  security  of  his  rights,  where  it  satisfacto- 
rily appears  by  the  complaint,  verified  on  oath,  or  by  affidavits  or  the  proofs  in  the 
cause,  that  the  plaintiff  has  a  just  claim,  and  that  the  property  is  about  to  be  sold, 
concealed,  or  removed  from  the  state,  or  where  the  plaintiff  states,  on  oath,  that 
he  has  reasonable  cause  to  believe,  and  does  believe,  that,  unless  prevented  by  the 
court,  the  property  will  be  sold,  concealed,  or  removed  from  the  state,  an  attach- 
ment may  be  granted  against  the  property. 

§  442. — In  an  action  by  a  vendor  of  property  fraudulently  purchased,  to  vacate 
the  contract,  and  have  a  restoration  of  the  property,  or  compensation  therefor, 
where  the  complaint  shows  such  fraudulent  purchase  of  property  and  the  amount 
of  the  plaintiif's  claim,  and  is  verified  by  his  oath,  an  attachment  against  the 
property  may  be  granted.     [Civil  Code,  sees.  261-2G5.] 

§443. — The  attachments  in  the  cases  mentioned  in  the  last  two  sections  may 
be  granted  by  the  court  in  which  the  action  is  brought,  or  by  the  judge  or  clerk 
thereof,  or  any  judge  of  the  circuit  court,  upon  such  terms  and  conditions  as  to 
security  on  the  part  of  the  plaintiff  for  the  damages  which  may  be  occasioned  by 
them,  and  with  such  directions  as  to  the  disposition  to  be  made  of  the  attached 
property  as  may  be  just  and  proper  under  the  circumstances  of  each  case. 
[Amended  Stats.  1877,  p.  7.] 

§  444. — In  every  case  the  plaintiff  shall  be  required  to  give  security  for  the 
damages  to  the  defendant,  in  an  adequate  simi  to  be  specified  in  the  order  granting 
the  attachment;  and,  when  it  may  be  proper,  the  com-t  or  judge  or  clerk  thereof 
may  direct  that  the  defendant  or  person  in  possession  of  the  attached  property 
shall  be  permitted  to  retain  it,  upon  giving  bond,  with  security,  and  for  such  sum 
as  the  court  or  judge  or  clerk  thereof  may  prescribe.     [Amended  Stats.  1877,  p.  7.] 

§  445. — No  order  of  attachment  shall  be  issued  by  the  clerk  imtil  the  bond  on 
the  part  of  the  plaintiff,  required  by  the  order  of  the  court  or  judge  or  clerk 
thereof,  is  executed  and  filed  in  his  office  by  one  or  more  sufficient  securities  of  the 
plaintiff.     [Amended  Stats.  1877,  p.  7.] 

§  446. — The  order  of  attachment  shall  describe  the  specific  property  against 
which  it  is  issued,  and  shall  have  indorsed  upon  it  the  direction  of  the  court  or 
judge  or  clerk  thereof  as  to  the  disposition  to  be  made  of  the  attached  property. 
It  shall  be  directed,  executed,  and  returned  as  other  orders  of  attachment. 
[Amended  Stats.  1877,  p.  7.] 

§  447. — The  sheriff  shall  make  such  disposition  of  the  attached  property  as  may 
be  directed  by  the  coui-t,  judge,  or  clerk  thereof;  and  when  there  is  no  direction 
upon  the  subj  ect,  he  shall  safely  keep  the  property,  subject  to  the  order  of  the  court. 
[Amended  Stats.  1877,  p.  7.] 

§  448. — The  court  may,  in  any  of  the  cases  mentioned  in  sections  441  and 
442,  direct  the  teims  and  conditions  of  the  bond  to  be  executed  by  the  defend- 
ant, with  security,  in  order  to  obtain  a  discharge  of  the  attachment. 

§  449. — Where,  after  an  order  of  attachment  against  specific  property  has 
been  pilaced  in  the  hands  of  the  sheriff,  such  property  is  removed  from  the 
county,  the  sheriff  may  pursue  and  attach  it  in  another  comity,  within  twenty- 
four  hours  after  such  removal. 

§  450. — Where  it  appears,  by  the  return  of  the  sheriff,  or  by  the  affidavit  of 
the  i^laintiff,  that  any  specific  propert}',  against  which  an  order  of  attachment 
is  issued,  has  been  concealed  or  removed  by  the  defendant,  the  court  may  require 
him  to  attend  and  be  examined,  on  oath,  respecting  such  matter,  and  may 
enforce  its  orders  in  this  respect  as  in  cases  of  contempt. 

§  451. — Performance  of  bonds  to  obtain  discharge  of  specific  attachments,  or 
for  the  forthcoming  of  property  specifically  attached,  may,  in  all  cases,  be  sum- 
marily enforced  by  rules  and  proceedings  as  in  cases  of  contempt. 

§452. — The  provisions  of  this  chapter  may  be  applied,  so  far  as  shall  be 
proper,  to  regulate  the  proceedings  in  cases  of  attachments  against  specific 
property. 

DISCHARGE  AND  REINSTATEMENT  OF  ATTACHMENT. 

§  453. — An  attachment  obtained  at  the  commencement  of  an  action  shall 
be  sustained  or  discharged  at  the  time  that  judgment  is  rendered  in  the  action, 
iinless,  for  sufficient  cause,  the  court  extends  the  time  of  deciding  upon  it.    An 


ARKANSAS.  439 

attachment  obtained  after  tte  commencement  of  an  action  shall  not  be  sus- 
tained until  the  defendant  has  had  the  time  for  controverting  it  provided  in 
this  chapter. 

§  454. — If  judgment  is  rendered  in  favor  of  the  defendant,  the  attachment 
shall  be  discharged. 

§  455. — If  judgment  is  rendered  in  favor  of  the  plaintiff;  and  no  affidavit  or 
answer,  verified  by  oath,  by  the  defendant  filed,  denying  the  statements  of  the 
affidavit  upon  which  the  attachment  was  issued,  or  motion  made  to  discharge 
it,  the  court  shall  sustain  the  attachment. 

§  456. — Upon  an  attachment  being  sustained,  the  property  attached,  or  its 
proceeds,  or  the  securities  taken  upon  the  attachment,  shall,  by  apiDropriate 
orders,  be  applied  in  satisfaction  of  the  judgment. 

§  457. — The  defendant  may  file  his  affidavit  denying  all  or  any  of  the  mate- 
rial statements  of  the  affidavit  upon  which  the  attachment  is  issued,  and  there- 
upon the  attachment  shall  be  considered  as  controverted,  and  the  affidavits  of 
the  plaintiff  and  defendant  shall  be  regarded  as  the  pleadings  in  the  attach- 
ment, and  have  no  other  effect.  Where  the  attachment  was  obtained  at  the 
commencement  of  an  action,  the  defendant  may  file  his  affidavit  at  such  time 
after  the  levy  of  the  attachment  as  is  given  by  law  for  filing  his  defense,  after 
the  service  of  the  siunmons,  which  period  may  be  extended  by  the  court  for 
sufficient  cause. 

§  458.— Either  party  may  take  proof  by  deposition,  to  be  read  on  the  trial 
of  the  attachment;  or,  by  i^ermission  of  the  court,  the  witnesses  may  be  orally 
examined  in  court. 

§  459. — At  any  time  before  the  attachment  is  sustained,  the  defendant,  upon 
reasonable  notice  to  the  plaintiff,  or  his  attorney,  may  move  the  court  to  dis- 
charge the  attachment,  the  hearing  of  which  may  be  postponed  by  the  court, 
upon  sufficient  cause,  from  time  to  time;  and,  upon  the  hearing,  if  the  court  is 
of  opinion  that  the  attachment  was  obtained  without  sufficient  cause,  or  that 
the  grounds  of  attachment,  being  controverted,  are  not  sustained,  the  attach- 
ment shall  be  discharged. 

§  460. — The  orders  for  a  discharge  of  an  attachment,  made  at  or  after  the 
rendition  of  judgment  in  the  action,  shall  be  final  and  not  subject  to  be  rein- 
stated, but  shall  be  subject  to  appeal.  The  order  sustaining  the  attachment 
shall  also,  in  like  manner,  on  the  rendition  of  judgment  in  the  action,  be  subject  to 
appeal. 

§  461. — The  reinstatement  of  attachments  as  herein  provided  shall  only  be 
binding  on  the  inferior  court  until  judgment;  and  when  judgment  is  rendered 
in  the  action,  the  inferior  court  shall  make  a  disposition  of  the  motion  to  dis- 
charge, which  shall,  in  like  manner,  be  final. 

§  462. — The  defendant,  on  reasonable  notice  to  the  plaintiff,  may,  at  any 
time  before  the  term  next  after  the  levy  of  the  attachment,  move  the  judge  of 
the  court  in  vacation  to  discharge  the  attachment,  on  the  groimds  of  its  having 
been  issued  contraiy  to  the  provisions  of  this  chapter;  and  the  judge,  on  an 
inspection  of  the  paf)ers  in  the  action,  or  of  the  authenticated  copies  of  them, 
shall  have  the  same  power  of  discharging  the  attachment  by  his  written  order, 
filed  by  the  clerk,  as  he  would  have  in  comt,  and  shall  have  like  i^ower  to 
permit  amendments  by  the  j)laintiff. 

§  463. — \Vhere  the  plaintiff  desires  a  reinstatement  of  the  attachment,  he 
may  have  an  entry  made  upon  the  record  of  leave  to  apply  therefor  Avithin 
reasonable  time  ^  not  exceeding  twenty  days.  And,  in  such  case,  the  order  of 
discharge  shall  be  made  to  take  effect  at  the  end  of  the  i^eriod  so  limited,  unless 
the  attachment  is  reinstated  in  the  meantime. 

§  464. — A  judge  of  the  supreme  court,  in  any  case  in  which  the  plaintiff  has 
secured  the  right  to  ai:)ply  therefor,  in  the  manner  provided  in  the  last  section, 
may,  upon  an  inspection  of  copies  of  the  record,  and  of  the  depositions  and  affi- 
davits read  upon  the  motion  to  discharge,  reinstate  the  attachment;  and,  if  the 
order  of  reinstatement  shall  be  filed  in  the  clerk's  office  of  the  court  in  which 
the  action  is  pending,  within  the  time  Ihnited  as  provided  in  the  last  section,  the 
execution  of  the  order  of  attachment  shall  proceed;  otherwise,  it  shall  stand 
discharged,  and  restitution  shall  be  made  of  any  property  taken  under  it. 

§  465. — In  all  actions  in  which  attachments  may  be  pending  in  the  circuit 
court,  held  in  any  county,  and  in  the  inferior  courts  of  said  coimty,  and  which 


440  ARKANSAS. 

have  been  bvied  upon  the  same  property,  in  •vrliole  or  in  part,  it  shall  be  the  duty 
of  tho  judje  of  said  circuit  court,  or  of  said  inferior  court,  upon  the  motion  of 
either  party  in  said  action  or  ac'.ions,  to  make  an  order  for  the  removal  of  the 
actions  ijcnuin^-  in  the  said  inferior  ciurt  to  said  circmfc  court,  where  they  shall 
be  tried  as  if  originally  brought  in  said  circtiit  coiui;. 

§  4G6. — In  all  actions  which  may  be  brought  in  the  circuit  court,  and  iu 
which  attachments  may  be  pending-,  and  which  may  be  levied  upon  the  same 
property,  in  whole  or  in,  part,  the  judge  of  said  court  where  said  actions  are 
pending  shall  have  power  to  make  an  order  for  the  removal  of  said  actions,  or 
some  of  them,  by  change  of  venue,  so  as  to  have  them  all  upon  the  same  docket 
and  under  the  control  of  the  same  court.  Such  order  of  removal  shall  only  be 
made  upon  petition  filed,  and  in  such  cases  as  the  judge  shall  be  satisfied  that 
Buch  removal  is  necessary  for  the  proper  distribution  of  the  attached  projierty, 
and  the  adjustment  of  the  rights  of  the  parties  to  said  actions;  and  in  making 
Biiid  order  of  removal  due  regard  shall  be  had  to  the  convenience  of  the  parties. 

§  4G7. — Said  order  of  removal  may  be  made  in  open  court,  or  by  the  judge 
of  said  coxn1;s  in  vacation;  but  in  either  case  notice  of  the  apiDlication  shall  be 
given  to  the  opposite  party,  and  affidavit  may  be  read  for  and  against  such 
application. 

§  468. — Where  said  order  of  removal  is  made,  it  shall  be  the  duty  of  the 
clerk  of  said  circuit  court,  and  of  the  judges  of  said  inferior  courts,  immedi- 
ately to  remove  the  papers  in  said  action,  as  directed  by  said  order,  and  to  file 
an  authentic  copy  of  the  orders  which  have  been  made  in  said  case  or  cases. 
If  the  order  of  removal  is  to  another  county,  the  clerk  shall  have  the  same 
fees  now  allowed  for  like  services  in  other  cases  of  change  of  venue,  to  be  paid 
in  advance  by  the  applicant  for  the  removal,  and  to  be  taxed  as  costs,  and 
finally  paid  out  of  the  attached  funds,  or  by  such  of  the  parties  as  the  court 
shall  order.     [Civil  Code,  sees.  2G7-291.] 

INTERPLEADER. 

§  4G9. — 'WTien  a  sheriff  shall  levj^  a  writ  of  attachment  upon  property  claimed 
by  a  person  not  a  party  to  the  writ,  such  person  shall  make  oath  to  the  property, 
and  the  Eame  shall  be  delivered  to  him  upon  his  giving  bond  in  favor  of  the 
plaintiiT,  with  security  to  be  approved  by  the  sheriff,  in  a  sum  double  the  value 
of  the  property  attached,  which  value  shall  be  ascertained  by  the  oaths  of  two 
citizens  of  the  county  where  the  writ  is  levied,  to  be  chosen  by  the  sheriii. 

§  470. — Such  bond  shall  be  conditioned  that  said  claimant  will  interplead  at 
the  term  of  the  court  to  which  said  writ  shall  be  returnable;  that  he  will  prose- 
cute such  interpleader  to  judgment  without  delay,  and  if,  on  the  trial  of  .such 
interpleader,  the  said  property  shall  be  found  to  be  the  property  of  the  defend- 
ant in  such  ^iTit,  and  the  plaintiff  shall  recover  judgment  against  said  defend- 
ant, the  property  shall  be  delivered  to  said  sheriff  or  his  successor  in  office 
whenever  demanded  by  such  sheriff,  after  execution  upon  such  judgment  comes 
to  his  hand  to  be  levied  thereon.  In  case  the  property'so  levied  upon  shall  not 
be  delivered  as  aforesaid,  said  bond  shall  have  the  force  and  effect  of  a  judg- 
ment for  the  amount  of  the  appraised  value  of  such  property  and  the  costs  of 
the  interjilea,  if  such  appraised  value  be  less  than  the  amount  of  the  judgment 
rendered  in  the  original  case,  and  if  more,  for  the  amount  of  said  judgment  and 
costs,  on  which  judgment  execution  against  all  the  obligors  may  issue. 

§  471. — Such  bond  shall  be  returned  by  the  sheriff  with  the  writ. 

§  472. — If  any  person  to  whom  such  property  is  so  returned  shall  neglect  or 
refuse  to  deliver  the  same  to  the  sheriff,  in  accordance  ■nith  the  condition  cf 
the  bond,  it  shall  be  the  duty  of  such  sheriff  forthwith  to  return  the  writ  of 
fieri  facias  issued  upon  the  original  judgment  in  said  cause,  setting  forth  the 
fact  that  the  condition  of  the  bond  has  been  broken. 

§  473. — On  the  return  of  such  writ  of  fieri  facias,  showing  the  forfeiture  of 
said  bond,  it  shall  be  the  duty  of  the  clerk  of  the  court  to  which  said  vrrlt  is 
returned  to  issue  an  execxition  in  favor  of  the  plaintiff  against  all  the  obligors 
for  the  amount  which  may  be  due  on  such  forfeited  bond.     [Act  Jan.  19,  1861.] 

ATTACHMENTS   OF   BOATS,    VESSELS,    ETC. 

§  474. — All  boats  and  vessels  of  all  descriptions,  buUt,  repaired,  equipped,  or 
running  upon  any  of  the  navigable  waters  of  this  state,  shall  be  liable  for  con- 
tracts of  every  kind  made  by  the  owners,  masters,  or  supercargoes  of  such  boats 
or  vessels,  for  or  on  account  of  such  boats  or  vessels. 


ARKANSAS.  441 

§  475. — 'V^Tien  such  boats  or  vessels  shall  commit  any  tort  whatever,  such 
boats  or  vessels  shall  be  liable  for  the  same. 

§  47G. — For  all  contracts  and  torts  mentioned  in  this  act,  such  boats  or  ves- 
sels may  be  sued  by  name  or  description,  and  attached,  in  the  manner  now 
prescribed  by  law.     [Act  Dec.  7,  1860,  sees.  1-3.] 

§  477. — Debts  due  from  the  o\vners  or  proprietors  of  the  said  boats  or  ves- 
sels, for  the  wages  of  mariners,  boatmen,  and  others  emi^loyed  in  the  service  of 
said  boats  or  vessels,  shall  have  preference  over  all  other  debts  and  claims,  and 
be  first  paid. 

§  478. — Any  person  having  a  demand,  contracted  as  above  mentioned,  against 
any  such  boat  or  vessel,  upon  affidavit  being  made  and  filed  with  the  clerk  of 
the  circuit  court,  or  any  justice  of  the  peace,  setting  forth  the  nature  and  the 
amount  of  such  demand,  and  giving  bond  as  in  other  cases  of  attachment,  may 
have  an  attachment,  to  be  issued  by  the  clerk  of  the  circuit  court,  or  by  any 
justice  of  the  peace  having  jm-isdiction  of  the  amount  claimed,  in  any  county  in 
the  state  in  which  such  boat  or  vessel  may  be  found. 

§  479. — The  plaintiff  may  make  his  election  either  to  proceed  against  the 
owner  or  o\\Tiers  by  their  proper  names,  or  by  the  name  and  style  of  their 
partnership,  if  known,  or  against  such  boat  or  vessel  by  her  name  or  descrip- 
tion only,  which  writ  shall  authorize  and  direct  the  seizure  and  detention  of 
such  boat  or  vessel,  her  engine,  machinery,  sails,  rigging,  tackle,  apparel  and 
furniture,  by  the  sheriff  or  constable. 

§  480. — In  all  cases  Avhere  such  proceedings  are  instituted  against  such  boat 
or  vessel  by  her  name  or  description  only,  the  bond  to  be  given  by  the  plaintiff 
shall  be  made  payable  to  the  "state  of  Arkansas,"  for  the  use  and  benefit  of 
the  owners  of  such  boat  or  vessel,  who  may  institute  a  suit  thereon,  if  dam- 
ages be  occasioned  by  the  issuing  of  such  attachment  Avrongfully,  and  have 
recovery  thereon,  in  the  same  manner  as  if  said  bond  had  been  given  to  such 
person  in  his  proper  name,  or  in  the  name  and  style  of  the  partnership. 

§  481. — Upon  the  return  of  such  attachment,  the  plaintiff  shall  file  a  writ- 
ten declaration  or  statement  against  such  boat  or  vessel,  by  her  name  or  descrip- 
tion, or  against  the  o^vner  or  o-wners,  as  the  case  may  be,  briefly  reciting  the 
nature  cf  the  demand,  whether  for  work  and  labor  done,  or  materials,  firewood, 
or  supplies  of  jirovisions  fiu-nished,  and  whether  at  the  request  of  the  owner, 
master,  .supercargo,  or  consignee  of  such  boat  or  vessel,  and  that  such  demand 
remains  unpaid,  annexing  to  such  declaration  or  statement  a  bill  of  the  partic- 
ulars constituting  such  demand,  in  sej^arate  and  distinct  items. 

§  482. — Such  attachment  shall  proceed  in  like  manner,  in  all  other  respects, 
and  the  like  judgment  and  execution  shall  be  had,  as  in  other  cases  of  attach- 
ment. 

§  48.3. — All  engineers,  pilots,  mariners,  boatmen,  and  others  emploj'ed  in  any 
capacity  in  or  about  such  boat  or  vessel,  who  may  be  entitled  to  arrearages  of 
wages  in  consequence  of  such  services,  may  proceed  to  collect  such  wages  under 
the  i")rovisions  of  this  act,  and  shall  be  entitled  to  all  the  benefits  thereof. 

§  484. — If  the  owner,  master,  supercargo,  or  consignee  of  any  such  boat  or 
ves.el,  seized  by  attachment,  shall,  at  any  time  before  judgment,  give  bond  to 
the  1  laintiff ,  with  security,  to  be  approved  of  by  the  clerk  of  the  circuit  coiu-t, 
or  by  t.ie  judge  in  term  time,  or  justice  of  the  peace,  as  the  case  may  be,  iu 
double  the  amount  of  the  demand  sued  for,  conditioned  to  pay  and  satisfy  such 
judgment  as  the  court  or  justice  may  render  against  such  boat  or  vessel,  or 
against  such  o'RTier,  as  the  case  may  be,  together  with  cost  of  suit,  then  such 
boat  f)r  vessel  shall  forthwith  be  discharged  from  such  attachment,  seiziire  and 
detention,  but  shall,  nevertheless,  be  liable  to  be  taken  and  sold  on  any  execu- 
tion to  be  issued  on  any  such  judgment,  or  upon  the  jud.gment  that  may  be 
rendered  at  any  time  on  the  bond  required  to  be  given  by  the  defendant  jjarty. 
[Eev.  Stat.,  chap.  14.] 

Exemptions— §§  2623,  2629,  5G75,  5676,  and  Stats.  1875,  p.  24. 

Lion  created  by  attachment— §  271G. 

Before  ju.stices  of  the  peace— Stats.  1875,  pp.  Ill,  179,  187,  231. 

Papers  to  be  designated  for  publication — §  4031. 

J^andlord's  lien— g§  4101,  4104. 

No  lien  on  con.structive  notice;  exceptions — §  4824. 

Writ  may  issue  on  Sunday — §  4825. 

Cutting  of  timber — Stats.  1883,  p.  142. 


442  CALIFORNIA. 


CALIFORNIA. 

[Code  of  Civil  Procedure,  as  ameistded  1885.] 


ATTACHMENT. 


§  537. — The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time  after- 
ward, may  have  the  property  of  the  defendant  attached,  as  security  for  the  satis- 
faction of  any  judgment  that  may  be  recovered,  unless  the  defendant  give  security 
to  pay  such  judgment,  as  in  this  chapter  provided  in  the  following  cases: 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct  payment  of 
money,  where  the  contract  is  made  or  is  payable  in  this  state,  and  is  not  secured 
by  any  mortgage  or  lien  upon  real  or  personal  property,  or  any  pledge  of  personal 
property,  or,  if  originally  so  secured,  such  security  has,  without  any  act  of  the 
plaintiff,  or  the  person  to  whom  the  secm-ity  was  given,  become  valueless. 

2.  In  an  action  upon  a  contract,  express  or  impUed,  against  a  defendant  not  re- 
siding in  this  state.     [In  effect  July  1,  1874.] 

§  538. — The  clerk  of  the  court  must  issue  the  writ  of  attachment,  upon  receiv* 

ing  an  affidavit  by  or  on  behalf  of  plaintiff,  shomng: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
Buch  indebtedness  over  and  above  all  legal  set-offs  or  counter-claims)  upon  a  con- 
tract, express  or  implied,  for  the  direct  pajTnent  of  money,  and  that  such  contract 
was  made  or  is  payable  in  this  state,  and  that  the  payment  of  the  same  has  not 
been  secm-ed  by  any  mortgage  or  lien  upon  real  or  personal  iJroperty,  or  any  pledge 
of  personal  property,  or,  if  originally  so  secured,  that  such  seciu-ity  has,  without 
any  act  of  the  plaintiff,  or  the  person  to  whom  the  security  was  given,  become  val- 
ueless; or 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of  such 
indebtedness  over  and  above  all  legal  set-offs  or  counter-claims)  and  that  the  de- 
fendant is  a  non-resident  of  the  state;  and 

3.  That  the  attachment  is  not  sought,  and  the  action  is  not  prosecuted,  to 
hinder,  delay,  or  defraud  any  creditor  of  the  defendant.     [In  effect  July  1, 1874.] 

§  539. — Before  issuing  the  writ  the  clerk  must  require  a  written  undertaking  on 
the  part  of  the  plaintiff,  in  a  sum  not  less  than  two  hundred  dollars,  and  not  ex- 
ceeding the  amount  claimed  by  the  plaintiff,  with  sufficient  sureties,  to  the  effect 
that  if  the  defendant  recover  judgment,  the  plaintiff  will  pay  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  be  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specified  in  the  undertaking.  Within  five  days 
after  service  of  the  summons  in  the  action,  the  defendant  may  except  to  the  suf- 
ficiency of  the  sureties.  If  he  fails  to  do  so,  he  is  deemed  to  have  waived  all  ob- 
jections to  them.  When  excepted  to,  the  plaintiff's  sureties,  upon  notice  to  the 
defendant  of  not  less  than  two  nor  more  than  five  days,  must  justify  before  a 
judge  or  county  clerk  in  the  same  manner  as  upon  baU  on  arrest,  and  upon  failure 
to  justify,  or  if  others  in  their  place  fail  to  justify,  at  the  time  and  place  appointed, 
the  clerk  or  judge  shall  issue  an  drder  vacating  the  Avrit  of  attachment.  [In  effect 
March  30,  1874.     See  decision  of  supreme  court.] 

§  540. — The  vrrit  must  be  directed  to  the  sheriff  of  any  county  in  which  prop- 
erty of  such  defendant  may  be,  and  must  require  him  to  attach  and  safely  keep  all 
the  property  of  such  defendant  within  his  county  not  exempt  from  execution,  or 
60  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount 
of  which  must  be  stated  in  conformity  with  the  comi^laint,  unless  the  defendant 
give  him  seciirity  by  the  undertaking  of  at  least  two  sufficient  sureties,  in  an 
amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in  an  amount  equal  to  the 
value  of  the  property  which  has  been  or  is  about  to  be  attached;  in  which  case,  to 
take  such  undertaking.  Several  writs  may  be  issued  at  the  same  time  to  the  sher- 
iffs of  different  counties. 

§  541. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  to^jether  with  the  interest  and  profit  thereon,  and  all  debts 
due  such  defendant,  and  all  other  property  in  this  state  of  such  defendant,  not 


CALIFORNIA.  443 

exempt  from  execution,  may  be  attached,  and  if  judgment  be  recovered,  be  sold  to 
satisfy  the  judgment  and  execution. 

§  542.  — The  sheriif  to  whom  the  ^vrit  is  directed  and  delivered  must  execute  the 
same  without  delay,  and  if  the  undertaking  mentioned  in  section  540  be  not  given, 
as  follows: 

1.  Real  property  standing  upon  the  records  of  the  county  in  the  name  of  tho 
defendant,  must  be  attached  by  filing  with  the  recorder  of  the  county  a  copy  of 
the  ■\\Tit,  togethor  with  a  description  of  the  property  attached  and  a  notice  that  it 
is  attached,  and  by  leaving  a  similar  copy  of  the  -writ,  description  and  notice  with 
an  occuf)ant  of  the  property,  if  there  is  one;  if  not,  then  by  posting  the  same  in  a 
conspicuous  place  on  the  property  attached. 

2.  Real  property,  or  any  interest  therein,  belonging  to  the  defendant,  and  held 
by  any  other  person,  or  standing  on  the  records  of  the  county  in  the  name  of  any 
other  person,  must  be  attached  by  filing  with  the  recorder  of  the  county  a  copy  of 
the  vrrit,  together  with  a  descri lotion  of  the  property  and  a  notice  that  such  real  prop- 
erty and  any  interest  of  the  defendant  therein,  held  by  or  standing  in  the  name  of 
such  other  person  (naming  him),  are  attached,  and  by  leaving  with  the  occupant,  if 
any,  and  with  such  other  person  or  his  agent,  if  known  and  within  the  county,  or  at 
the  residence  of  either,  if  within  the  county,  a  copy  of  the  writ,  with  a  similar 
descrijition  and  notice.  If  there  is  no  occupant  of  the  property,  a  copy  of  the 
writ,  together  with  such  description  and  notice,  must  be  posted  in  a  conspicuous 
place  upon  the  property.  The  recorder  must  index  such  attachment  when  filed,  in 
the  names  both  of  the  defendant  and  of  the  person  by  whom  the  property  is  held, 
or  in  whose  name  it  stands  on  the  records. 

3.  Personal  property  capable  of  manual  delivery,  must  be  attached  by  taking 
it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares,  of  any  corporation  or  com- 
pany, must  be  attached  by  leaving  with  the  president  or  other  head  of  the  same, 
or  the  secretary,  cashier,  or  other  managing  agent  thereof,  a  copy  of  the  writ,  and 
a  notice  stating  that  the  stock  or  interest  of  the  defendant  is  attached,  in  pursu- 
ance of  such  wTit. 

5.  Debts  and  credits,  and  other  personal  property,  not  capable  of  manual  deliv- 
ery, must  be  attached  by  leaving  with  the  person  owing  such  debts,  or  having  in 
his  possession  or  under  his  cor.trol  such  credits  and  other  personal  property,  or  with 
his  agent,  a  copy  of  the  writ  and  a  notice  that  the  debts  owing  by  him  to  the  de- 
fendant, or  the  credits  and  other  personal  property  in  his  j)ossession  or  under  his 
control,  belonging  to  defendant,  are  attached  in  pursuance  of  such  writ. 

§  543. — Upon  receiving  information  in  writing  from  the  plaintiff  or  his  attorney, 
that  any  person  has  in  his  possession  or  under  his  control  any  credits  or  other  per- 
sonal property  belonging  to  said  defendant,  or  is  owing  any  debt  to  the  defendant, 
the  sheriif  must  serve  upon  such  person  a  copy  of  the  writ  and  a  notice  that  such 
credits,  or  other  property,  or  debts,  as  the  case  may  be,  are  attached,  in  pursuance 
of  such  writ. 

§  544. — All  persons  having  in  their  possession  or  under  their  control  any  credits 
or  other  joersonal  property  belonging  to  the  defendant,  or  o~ing  any  debts  to  the 
defendant,  at  the  time  of  service  upon  them  of  a  coi^y  of  the  writ  and  notice,  as 
I)rovided  in  the  last  two  sections,  shall  be,  unless  such  property  be  delivered  up  or 
transferred,  or  such  debts  be  x^aid  to  the  sheriff,  liable  to  the  plaintiff  for  the 
amount  of  such  credits,  property,  or  debts,  until  the  attachment  be  discharged,  or 
any  judgment  recovered  by  him  be  satisfied. 

§  545. — Any  person  owing  debts  to  the  defendant,  or  having  in  his  possession  or 
under  his  control  any  credits  or  other  personal  property  belonging  to  the  defend- 
ant, may  be  required  to  attend  before  the  comrt  or  judge,  or  a  referee  appointed  by 
the  court  or  judge,  and  be  examined  on  oath  respecting  the  same.  The  defendant 
may  also  be  required  to  attend  for  the  purpose  of  giving  infoi-mation  respecting 
his  property,  and  may  be  examined  on  oath.  The  coiu-t  or  judge  may,  after  such 
examination,  order  personal  property,  capable  of  manual  delivery,  to  be  delivered 
to  the  sheriff  on  such  terms  as  may  be  just,  having  reference  to  any  liens  thereon, 
or  claims  against  the  same,  and  a  memorandum  to  be  given  of  aU  other  personal 
property,  containing  the  amount  and  description  thereof. 

§  546. — The  sheriff  must  make  a  full  inventory  of  the  property  attached,  and 
return  the  same  ■vvith  the  writ.  To  enable  him  to  make  such  return  as  to  debts 
and  credits  attached,  he  must  request,  at  the  time  of  service,  the  party  owing  the 
debt  or  having  the  credit  to  give  him  a  memorandum,  stating  the  amount  and  de- 
scription of  each;  and  if  such  memorandum  be  refused,  he  must  return  tho  fact  of 
refusal  with  the  writ.    The  party  refusing  to  give  the  memorandum  may  be  re- 


444  CALIFORNIA. 

quired  to  pay  the  costs  of  any  proceedings  talien  for  the  purpose  of  obtaining  infor- 
iiiatiou  respecting  the  amounts  and  description  of  such  debt  or  credit. 

§  5-i7.  — If  any  of  the  property  be  perishable  the  sheriff  must  sell  the  same  in 
the  manner  in  which  such  property  is  sold  on  execution.  The  proceeds  and  other 
property  attached  by  him  must  be  retained  by  him  to  answer  any  judgment  that 
may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution  upon  another 
judgment,  recovered  i^revious  to  the  issuing  of  the  attachment.  Debts  and  credits 
attached  may  be  collected  by  him,  if  the  same  can  be  done  without  suit.  The 
eheriff 's  receii^t  is  a  sufficient  discharge  for  the  amount  jjaid. 

§  .548. — Whenever  property  has  been  taken  by  an  officer  imder  a  writ  of  attach- 
ment, and  it  is  made  to  appear  satisfactorily  to  the  court  or  judge  thereof,  that  the 
interests  of  the  parties  to  the  action  will  be  subserved  by  a  sale  thereof,  the  comrt 
or  judge  may  order  such  propr^-ty  to  be  sold  in  the  same  manner  as  property  is 
sold  under  an  execution,  and  the  proceeds  to  be  deposited  in  the  court,  to  abide 
the  judgment  in  the  action.  Such  order  can  be  made  only  uj^on  notice  to  the  ad- 
verse party  or  his  attorney,  in  case  such  party  has  been  personally  served  with  a 
summons  in  the  action.     [In  effect  March  9,  1880.] 

§  549. — If  any  personal  property  attached  be  claimed  by  a  third  person  as  hia 
property,  the  sheriff  may  siunmon  a  jury  of  six  men  to  try  the  validity  of  such 
claim,  and  such  proceedings  shall  be  had  thereon,  vsdth  the  like  effect,  as  in  case  of 
a  claim  after  levy  upon  execution. 

§  550. — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  must  satisfy  the 
same  out  of  the  property  attached  by  him  which  has  not  been  delivered  to  the 
defendant  or  a  claimant  as  hereinbefore  provided,  or  subjected  to  execution  on  an- 
other judgment,  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be  suf- 
ficient for  that  i^m-pose: 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property 
sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much  as  shaU  be 
necessary  to  satisfy  the  judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  the 
judgment,  he  naust  sell  under  the  execution  so  much  of  the  propertj',  real  or  per- 
sonal, as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose  re- 
main in  his  hands.  Xotices  of  the  sales  must  be  given,  and  the  sales  conducted  as 
in  other  cases  of  sales  on  execution. 

§  551.  If,  after  selling  all  the  property  attached  by  him  remaining  in  his  hands, 
and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts  or  credits  col- 
lected l.iy  him,  deducting  his  fees,  to  the  pajTuent  of  the  judgment,  any  balance  shall 
remain  due,  the  sheriff  must  proceed  to  coUect  such  balance  as  upon  an  execution 
in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  sheriff,  upon 
reasonable  demand,  must  deliver  over  to  the  defendant  the  attached  property 
remr.iiiin'j  in  his  hands,  and  any  proceeds  of  the  property  attached  unapplied  on  the 
judgment. 

§  552. — If  the  execution  be  returned  unsatisfied  in  whole  or  in  part,  the  plaintiff 
may  prosecute  any  undertaking  given  i5iu"suant  to  section  five  hundred  and  forty, 
or  section  five  hundred  and  fifty-five,  or  he  may  proceed  as  in  other  cases  upon  the 
retiu-n  of  an  execution. 

§  553. — If  the  defendant  recover  judgment  against  the  plaintiff,  any  undertak- 
ing received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  must  be  de- 
livered to  the  defendant  or  his  agent;  the  order  of  attachment  shall  be  discharged, 
and  the  jDroperty  released  therefrom. 

§  554. — ^\^lenever  the  defendant  has  appeared  in  the  action,  he  maj',  upon  rea- 
sonable notice  to  the  plaintiff,  apply  to  the  com-t  in  which  the  action  is  x^en ding,  or 
to  the  judge  thereof,  for  an  order  to  discharge  the  attachment,  wholly  or  in  part; 
and  upon  the  execution  of  the  undertaldng  mentioned  in  the  next  section,  an  order 
may  be  made,  releasing  from  the  operation  of  the  attachment  any  or  all  of  the 
property  attached;  and  all  of  the  property  so  released,  and  aU  of  the  proceeds  of 
the  sales  thereof,  must  be  delivered  to  the  defendant,  upon  the  justification  of  the 
sureties  on  the  undertaking,  if  required  by  the  plaintiff.    [In  effect  March  9,  1880.] 

§  555.— Before  making  such  order,  the  court  or  judge  must  require  an  imder- 
taking  on  behalf  of  the  defendant,  by  at  least  two  sureties,  residents  and  free- 
holders, or  householders,  in  the  state,  to  the  effect  that  in  case  the  plaintiff  recover 
jud^^ment  in  the  action,  defendant  will,  on  demand,  redeliver  the  attached  prop- 
erty so  released  to  the  proper  officer,  vo  be  appliea  to  the  paj-ment  of  the  judg. 


COLOHADO.  445 

ment,  or,  in  default  thereof,  that  the  defendant  and  sureties  will,  on  demand,  pay 
to  the  phiintiff  the  full  value  of  the  property  released.  The  court  or  judge  making 
such  order  may  fix  the  sum  for  which  the  imdertaking  must  be  executed,  and  if 
necessary  in  fixing  such  sum  to  know  the  value  of  the  property  released,  the  same 
may  be  appraised  by  one  or  more  disinterested  persons,  to  be  apjiointed  for  that 
purjiose.  The  sureties  may  be  required  to  justify  before  the  court  or  judge,  and  the 
property  attached  cannot  bo  released  from  the  attachment  without  their  justifica- 
tion, if  the  same  be  required.     [In  effect  July  1,  1874.] 

§  550. — The  defendant  may  also  at  any  time,  either  before  or  after  the  release 
of  the  attached  property,  or  before  any  attachment  shall  have  been  actually  levied, 
apply  on  motion,  ujion  reasonable  notice  to  the  plaintiff,  to  the  court  in  which  the 
action  is  brouglit,  or  to  a  judge  thereof,  that  the  writ  of  attachment  be  discharged 
on  the  ground  that  the  same  was  improperly  or  irregularly  issued.  [In  effect 
March  9,  1880.] 

§  557. — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant,  but 
not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other  evidence,  in 
addition  to  those  on  which  the  attachment  was  made. 

§  558. — If,  upon  such  application,  it  satisfactorily  appears  that  the  writ  of  at- 
tachment was  improperly  or  irregularly  issued,  it  must  be  discharged. 

§  559.  The  sheriff  must  return  the  writ  of  attachment  with  the  summons,  if 
issued  at  the  same  time;  otherwise,  within  twenty  days  after  its  receipt,  with  a 
certificate  of  his  proceedings  indorsed  thereon  or  attached  thereto;  and  whenever 
an  order  has  been  made  discharging  or  releasing  an  attachment  upon  real  pro^ierty, 
a  certified  copy  of  such  order  may  be  filed  in  the  offices  of  the  county  recorders  in 
which  the  notices  of  attachment  have  been  filed,  and  be  indexed  in  like  manner. 
[Approved  March  3,  1876.] 

Before  justices  of  the  peace — §§  106,  866-869. 
Against  vessels — §3  817-827. 

Materials,  etc.,  furnished,  not  subject  to — §  1196. 
Wages  preferred — §§  1206,  1207. 
Exemptions— §§  690,  1474. 


COLORADO. 

[Code  op  Civil  Procedure,  1877,  and  subsequent  Statutes.] 


§  91. — The  plaintiff,  at  the  time  of  issuing  the  summons  in  an  action  on  con- 
tract, express  or  implied,  or  at  any  time  afterward  before  jud.gment,  may  have  the 
proi^erty  of  the  defendant  not  exempt  from  execution  attached  as  security  for  any 
judgment  that  may  lie  recovered  in  such  action,  in  the  manner  prescribed  in  this 
chapter,  unless  the  defendant  shall  give  good  and  sufficient  security  to  secure  the 
payment  of  such  judgment. 

§  92. — No  writ  of  attachment  shall  issue  unless  the  plaintiff,  his  agent  or  attor- 
ney, or  some  credible  person  for  him,  shall  file  in  the  office  of  the  clerk  of  a  district 
court,  or  in  the  office  of  the  clerk  of  a  county  court  in  the  state,  or  with  the  judge 
of  said  county  court  where  no  clerk  is  provided,  in  cases  where  said  courts  have 
jurisdiction  given  to  them  by  law,  an  affidavit  setting  forth  that  any  jierson  is 
indebted  to  such  creditor,  stating  the  nature  and  amount  of  such  indebtedness,  as 
near  as  may  be,  and  alleging  any  one  or  more  of  the  following  causes  for  attach- 
ment, viz.: 

First.   That  the  defendant  is  not  a  resident  of  this  state. 

Second.    That  the  defendant  is  a  foreign  corporation. 

Third.  That  the  defendant  is  a  coriDoration,  whose  chief  office  or  place  of 
business  is  out  of  the  state.  * 

Fourtlu  That  the  defendant  conceals  himself,  or  stands  in  defiance  of  an  officer, 


446  COLORADO. 

BO  that  process  of  law  cannot  be  served  upon  him,  or  that  the  defendant  has  for 
more  than  four  months  been  absent  from  the  state,  or  that  for  such  length  of  tune 
his  -whereabouts  have  been  unknown  and  that  the  indebtedness  mentioned  in  the 
affidavit  has  been  due  dm-ing  all  the  said  period. 

Fifth.  That  the  defendant  is  about  to  remove  his  property  or  effects,  or  a  mate- 
rial part  thereof,  out  of  this  state,  with  intent  to  defraud,  or  hinder  or  delay  his 
creditors,  or  some  one  or  more  of  them. 

Sixth.  That  the  defendant  has  fraudulently  conveyed  or  transferred,  or  assigned 
bis  property  or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or  more 
of  them. 

Seventh.  That  the  defendant  has  fraudulently  concealed  or  removed,  or  disposed 
of  his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or  more 
of  them. 

Eighth.  That  the  defendant  is  about  to  fraudulently  convey  or  transfer,  or 
assign,  his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors,  or  some  one  or 
more  of  them. 

Ninth.  That  the  defendant  is  about  to  fraudulently  conceal  or  remove,  or  dis- 
pose of  his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors;  or  that  such 
debtor  has  departed,  or  is  about  to  depart,  from  this  state,  with  the  intention  of 
having  his  effects  removed  from  this  state. 

Tenth.  That  the  defendant  has  failed  or  refused  to  pay  the  price  or  value  of  any 
article  or  thing  delivered  to  him,  which  he  should  have  paid  for  upon  the  delivery 
thereof. 

Eleventh.  That  the  defendant  has  failed  or  refused  to  pay  the  price  or  value  of 
any  work  or  labor  done  or  performed,  or  for  any  services  rendered  by  the  plaintiff, 
at  the  instance  of  the  defendant,  and  which  should  have  been  paid  at  the  completion 
of  such  work,  or  when  such  services  were  fully  rendered. 

Twelfth.  That  the  defendant  fraudulently  contracted  the  debt,  or  fraudulently 
incurred  the  liability  respecting  which  the  suit  is  brought,  or  by  false  representa- 
tions or  false  pretenses,  or  by  any  fraudulent  conduct,  procured  money  or  property 
of  the  plaintiff. 

Thirteenth.  In  every  case  where  any  affidavit  shall  be  made  and  filed  as  afore- 
said, it  shall  be  lawful  for  such  clerk  to  issue  a  writ  of  attachment,  directed  to  the 
sheriff  of  the  county,  or  to  any  other  county  as  hereinafter  provided,  returnable 
like  other  writs  or  process  in  this  act,  commanding  him  to  attach  the  lands,  tene- 
ments, goods,  chattels,  rights,  credits,  moneys  and  effects  of  said  debtor,  of  every 
kind,  or  so  much  thereof  as  will  be  sufficient  to  satisfy  the  claim  sworn  to,  with 
interest  and  costs  of  suit,  in  whose  hands  or  possession  the  same  may  be  found. 

Fourteenth.  In  all  actions  brought  upon  overdue  promissory  notes,  biUs  of 
exchange,  or  other  written  instruments  for  the  direct  payment  of  money,  and  upon 
book-accounts,  the  creditor  may  have  a  writ  of  attachment  issued  upon  complying 
with  the  provisions  of  this  section.     [Amended  Stats.  1881,  p.  38.] 

§  93. — Before  issuing  the  writ  of  attachment  the  clerk  shall  require  a  written 
undertaking  on  the  part  of  the  plaintiff,  with  sufficient  sureties,  to  be  approved  by 
the  clerk,  in  a  sum  in  not  less  than  double  the  amount  claimed  by  the  f)laintiff,  to 
the  effect  that  if  the  defendant  recover  judgment,  or  if  the  court  shall  finally  decide 
that  the  plaintiff  was  not  entitled  to  an  attachment,  the  plaintiff  will  fiay  all  costs 
that  may  be  awarded  to  the  defendant,  and  all  damages  he  may  sustain  by  reason 
of  the  -n-rongful  suing  out  of  the  attachment,  not  exceeding  the  sum  specified  in  the 
undertaking.  Said  siu-eties  may  be  required  by  the  defendant  to  satisfy  the  clerk 
of  the  court  that  each  for  himself  is  worth  the  amount  for  which  he  is  willing  to 
become  security  in  the  undertaking  over  and  above  his  just  debts  and  liabilities,  in 
property  not  by  law  exempt  from  execution  in  this  state.  [Amended  Stats.  1879,  p. 
219.] 

§  94. — Actions  may  be  commenced  and  writs  of  attachments  issued  as  prescribed 
in  this  chapter,  upon  debts  or  liabilities  not  yet  due,  if  the  affidavit  states  any  of 
the  cases  mentioned  in  the  preceding  sections  [section  ninety-two],  except  the  iirst 
(1),  second  (2),  and  third  (3)  subdivisions  of  said  section:  Provided,  that  any  judg- 
ment obtained  under  the  provisions  of  this  section  shall  be  with  a  rebatement  of 
the  interest  from  the  time  such  judgment  is  rendered  until  the  time  at  which  said 
debt  or  liability  would  have  become  due. 

§  95. — The  defendant  against  whom  a  writ  of  attachment  has  issued,  or  his 
agent  or  attorney,  may  at  any  time  withm  ten  days  from  the  service  of  the  writ  of 
attachment,  by  an  affida\'it,  tra\'erse  and  put  in  issue  the  matters  alleged  in  the 
affidavit  upon  which  the  attachment  is  based,  and  if  the  plaintiff  shall  substantiate 
either  one  of  the  causes  alleged  in  his  affidavit,  the  said  attachment  shall  be  sus- 
tained, otherwise  the  same  shall  be  dissolved;  and  if  the  debt  for  which  the  action 
is  brought  is  not  due,  such  action  shall  b»  dismissed.  The  trial  of  the  issue  formed 
by  the  affidavits  shall  be  by  jiu"y,  xmless  a  jury  is  waived  by  the  parties.    But  if 


COLORADO.  447 

the  debt  is  due,  the  action  may  proceed  to  judgment  after  the  attachment  13  dis- 
solved, as  in  other  actions  where  no  attachment  is  issued.  [Amended  Stats.  1879, 
p.  219.] 

§  96. — The  ^y^it  shall  be  directed  to  the  sheriff  of  any  county  in  which  property 
of  such  defendant  may  be,  and  require  him  to  serve  a  copy  of  the  ^vrit  on  the 
defendant,  and  to  attach  and  safely  keep  all  the  property  of  such  defendant  within 
his  county,  not  exempt  from  execution,  or  so  much  thereof  as  may  be  sufficient  to 
satisfy  the  plaintiff's  demand,  the  amount  of  which  shall  be  stated  in  conformity 
with  the  affidavit;  and  alias  writs  may  issue  at  any  time,  unless  the  defendant 
deposit  the  amount  or  give  him  security  by  the  undertaking  of  at  least  two  suffi- 
cient sureties,  in  an  amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in 
amount  equal  to  the  value  of_  the  property  which  has  Ijeen  or  is  about  to  be 
attached,  in  which  case  the  sheriff  shall  take  such  undertaking.  Several  writs  may 
be  issued  a.t  the  same  time  to  the  sheriffs  of  different  counties. 

§  97. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  together  with  the  interests  and  profits  thereon,  and  all 
debts  due  such  defendant,  and  all  other  property  in  this  state  of  such  defendant, 
not  exempt  from  execution,  may  be  attached,  and,  if  judgment  be  recovered,  be 
sold  to  satisfy  the  judgment  and  execution. 

§  98. — The  sheriff  to  whom  the  writ  is  directed  and  delivered  shall  execute  the 
same  without  delay,  and  if  the  undertaking  mentioned  in  this  chapter  be  not  given 
by  the  defendant,  then  as  follows: 

First.  Real  property  standing  upon  the  records  of  the  county  in  the  name  of  the 
defendant  shall  be  attached  by  filing  a  copy  of  the  writ,  together  with  a  description 
of  the  property  attached,  with  the  recorder  of  the  cotmty. 

Second.  Real  property,  or  any  interest  therein,  belonging  to  the  defendant,  and 
held  by  any  other  person,  or  standing  upon  the  records  of  the  county  in  the  name 
of  any  other  person  (but  belonging  to  the  defendant),  shall  be  attached  by  leaving 
with  such  person,  or  his  agent,  a  copy  of  the  writ  and  a  notice  that  such  real  prop- 
erty (giving  a  description  thereof),  and  any  interest  therein,  belonging  to  th« 
defendant,  are  attached,  pursuant  to  such  writ,  and  filing  a  copy  of  such  %vi-it  and 
notice  with  the  recorder  of  the  county. 

Third.  Personal  property  capable  of  manual  delivery  shall  be  attached  by 
taking  it  into  custody. 

Fourth.  Debts  and  credits  and  other  personal  property  not  capable  of  manual 
delivery  shall  be  attached  by  leaving  with  the  person  o\ving  such  debts,  or  having 
in  his  possession  or  imder  his  control,  such  credits,  and  other  personal  property,  or 
with  his  agent,  a  notice  that  the  debts  o'wing  by  him  to  the  defendant,  or  the  credits 
and  other  personal  property  in  his  possession,  or  under  his  control,  belonging  to  the 
defendant,  are  attached,  in  pursuance  of  the  writ  of  attachment  issued  in  said 
cause.     [Amended  Stats.  1879,  p.  220.] 

§  99.  — In  all  cases  of  attachment  any  person  other  than  the  defendant,  claiming 
any  of  the  property  attached,  on  any  lien  thereon,  or  interest  therein,  may  inter- 
vene without  giving  bail;  but  the  property  attached  shall  not  thereby  be  replevined 
or  released.  Such  intervention  shall  be  by  verified  petition  stating  the  right  or 
interest  which  the  intervener  claims  in  or  to  such  property,  and  the  same  may  be 
filed  in  said  cause  at  any  time  before  the  trial  of  the  cause  upon  its  merits,  and  as 
soon  as  notice  of  the  intervention  shall  be  given  to  the  interested  parties  to  the 
action,  or  their  attorneys,  with  reasonable  opportunity  to  them  to  defend  against 
the  same.  The  same  shall  be  tried  as  follows:  If  the  intervener  claim  the  absolute 
title  or  o^vne^ship  to  the  property,  either  party  shall  be  entitled  to  trial  by  jury; 
but  if  the  claim  be  by  mortgage  or  some  interest  less  than  full  title  or  ownership, 
the  trial  [shall]  be  by  the  court  unless  the  court  shall  direct  an  issue  to  a  jury.  In 
case  the  verdict  or  finding  shall  be  for  the  intervener,  the  damages  which  he  has 
suffered  by  reason  of  the  attachment  of  the  property  may  be  assessed  in  such  verdict 
or  findings,  and  the  intervener  shall  recover  the  same,  together  with  his  costs,  of 
the  plaintiff  in  the  attachment;  and  the  court  shall  render  such  judgment  in  refer- 
ence to  the  attached  property  as  vnll  secure  the  right  of  the  intervener  thereto  or 
therein,  according  to  such  verdict  or  finding;  and  in  case  the  verdict  or  finding 
shall  be  for  the  plaintiff,  he  shall  recover  costs  against  such  intervener;  and  the 
court  may  require  the  intervener  to  give  security  for  costs  for  like  causes  and  in 
like  manner  as  plaintiff  may  be  required  to  give  security  for  costs  in  civil  actions. 
[Amended  Stats.  1883,  p.  li.3.] 

§  100. — It  shall  be  the  duty  of  the  county  recorder  to  file  and  safely  keep  such 
copy  of  the  writ  and  description  of  the  property  subject  to  the  inspection  of  aU 
persons,  and  record  the  same  in  a  book  to  be  kept  for  that  jjurpose,  and  to  index 
the  same  in  the  records;  and  such  recorder  shall  receive  a  fee  of  twenty-five  cents 


448  COLORADO, 

for  such  filin,?  and  safe-keepinj?  of  said  lists,  and  the  further  fee  for  recording  as  ia 
prescribed  by  law,  to  be  paid  by  the  plaintiff  in  the  action,  and  taxed  and  allowed 
to  him  as  other  costs  and  disbursements  in  the  action. 

§  101. — Upon  receiving  information  in  writing  from  the  plaintiff,  or  his  attorney, 
that  any  i)erson  has  in  his  possession,  or  under  his  control,  any  credits  or  other  per- 
sonal property  belonging  to  the  defendant,  or  is  owing  any  debt  to  the  defendant, 
the  sheriff  shall  serve  upon  such  person  a  notice  that  such  credits  or  other  property 
or  debts,  as  the  case  may  be,  are  attached  in  pursuance  of  the  writ  of  attachment 
issued  in  said  cause;  and  every  mimicipal  or  other  corporation,  or  (^itasj  corpora- 
tion, sheriff,  or  other  puhlic  officer  or  trustee  shall  be  liable  to  garnishment  under 
the  provisions  of  this  chafjter.     [Amended  Stats.  1879,  p.  220.  ] 

§  102. — All  persons  having  in  their  possession,  or  under  their  control,  any  credits 
or  other  personal  property  belonging  to  the  defendant,  or  owing  any  debts  to  the 
defendant  at  the  time  of  service  upon  them  of  the  notice,  as  provided  in  the  last 
section,  shall  be,  unlesssuch  property  be  delivered  up  or  transferred,  or  such  debts 
be  paid  to  the  sheriff,  liable  to  the  ])laintiff  for  the  amount  of  such  credits,  prop- 
erty or  debts,  until  the  attachment  be  discharged,  or  any  judgment  recovered  by 
him  in  the  action  be  satisfied.     [Amended  Stats.  1879,  p.  221.] 

§  103. — ^^Any  person  owing  debts  to  the  defendant,  or  having  in  his  possession, 
or  under  his  control,  any  credits  or  other  personal  property  belonging  to  the  de- 
fendant, may  be  required  to  attend  before  the  court  or  judge,  or  a  referee  appointed 
by  the  court  or  judge,  and  be  examined  on  oath  respecting  the  same.  The  defend- 
ant may  also  be  required  to  attend  for  the  purpose  of  giving  information  respecting 
his  property,  and  may  be  examined  on  oath.  The  court  or  judge  may,  after  such 
examination,  order  personal  projierty  capable  of  manual  dehvery  to  be  delivered  to 
the  sheriff  upon  such  terms  as  may  be  just,  having  reference  to  any  liens  thereon, 
or  claims  against  the  same;  and  a  memorandum  to  be  given  of  all  other  personal 
property,  containing  the  amount  and  description  thereof. 

§104.— The  sheriff  shall  make  a  full  inventory  of  the  property  attached  and 
return  the  same  upon  the  writ. 

To  enable  him  to  make  such  return  as  to  debts  and  credits  attached,  he  shall 
request,  at  the  time  of  service,  the  party  owing  the  debt,  or  having  the  credit,  to 
give  him  a  statement,  which  statement  shall  be  sworn  to  by  the  party,  his  agent  or 
attorney,  stating  the  amount  and  description  of  each,  and  if  such  statement  be 
refused,  he  shall  return  the  fact  of  refusal  with  the  Avrit.  The  party  refusing  to 
give  the  statement  may  be  required  to  pay  the  costs  of  any  proceedings  taken  for 
the  purpose  of  obtaining  information  respecting  the  amount  of  such  debt  or  credit, 
and  may  be  ordered  to  furnish  such  statement  under  penalty  of  contempt.  [Amended 
Stats.  1879,  p.  221.] 

§  105. — If  any  of  the  property  attached  be  perishable,  the  sheriff  shall  sell  the 
same  in  the  manner  in  which  such  property  is  sold  on  execution.  The  proceeds, 
and  other  property  attached  by  him,  shall  be  retained  by  him  to  answer  any  judg- 
ment that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution 
upon  another  jud;;?ment  recovered  previous  to  the  issuing  of  the  attachment.  Debts 
and  credits  attached  may  be  collected  by  him,  if  the  same  can  be  done  without 
suit.     The  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the  amount  paid. 

§  106. — If  any  personal  property  attached  be  claimed  under  oath  by  a  third 
party  as  his  property,  the  sheriff  shall  deliver  the  property  to  such  third  party 
within  five  (5)  days,  if  the  plaintiff  resides  within  the  coimty,  other^vise  ten  days 
after  notice  to  plaintiff's  attorney,  unless  the  plaintiff  give  the  sheriff  good  and  suf- 
ficient bond  to  indemnify  him  against  any  loss  or  damage  by  reason  of  holding  such 
property. 

§  107. — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall  satisfy  the 
same  out  of  the  property  attached  liy  him,  which  has  not  been  delivered  to  the 
defendant  or  claimant  as  hereinbefore  provided,  or  subjected  to  execution  on  an- 
other judgment  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be  suffi- 
cient for  that  purpose. 

First.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property 
sold  by  him,  or  any  debts  or  credits  collected  by  him,  or  so  much  as  shall  be  neces- 
sary to  satisfy  the  judgment. 

Second.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on 
the  judgment,  he  shall  sell,  under  the  execution,  so  much  of  the  property,  real  or 
personal,  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose 
remain  in  his  hands.  Notices  of  the  sales  shall  be  given  and  the  sales  conducted  aa 
in  other  cases  of  sales  on  execution. 


COLORADO.  449 

§  103. — If,  after  selling  all  the  property  attached  by  him  remaining  in  his  hands, 
and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts  or  credits  col- 
lected by  him,  deducting  his  fees,  to  the  pajTuent  of  the  judgment,  any  balance 
shall  remain  due,  the  sheriff  shall  proceed  to  collect  such  balance  as  upon  an  execu- 
tion in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  sheriff,  upon 
reasonable  demand,  shall  deliver  over  to  the  defendant  the  attached  property 
remaining  in  his  hands,  and  any  proceeds  of  the  property  attached  unajiplied  on  the 
judgment. 

§  109. — If  the  execution  be  returned  unsatisfied  in  whole  or  in  part,  the  plaintiff 
may  prosecute  any  undertaking  given  pursuant  to  the  provisions  of  this  chapter, 
and  he  may  proceed  as  in  other  cases,  upon  the  return  of  an  execution  unsatisfied. 

§  110. — If  the  defendant  recover  judgment  against  the  plaintiff,  any  undertak- 
ing received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  shall  be 
delivered  to  the  defendant  or  his  agent,  the  order  of  attachment  shall  be  discharged 
and  the  property  released  therefrom. 

§  111.— The  defendant  may,  at  any  time,  release  any  property  in  the  hands  of 
the  sheriff,  by  virtue  of  any  writ  of  attachment,  by  executing  an  undertaking  as 
provided  for  in  the  next  section;  and  all  the  proceeds  of  sales  and  money  collected 
by  the  sheriff,  and  all  the  property  attached  remaining  in  his  hands,  shall  be  re- 
leased from  the  attachment,  and  delivered  to  the  defendant  upon  the  justification 
of  the  sureties  in  the  undertaking. 

§  112.— Before  releasing  such  attached  property,  as  aforesaid,  to  the  defendant, 
the  sheriff  shall  require  an  undertaking  executed  by  the  defendant  to  the  plaintiff, 
and  at  least  two  sureties,  residents  and  freeholders,  or  householders  in  this  state,  to 
the  effect  that  in  case  the  plaintiff  recover  judgment  in  the  action,  and  the  attach- 
ment is  not  dissolved,  defendant  will,  on  demand,  redeliver  such  attached  property 
so  released  to  the  proper  officer,  to  be  applied  to  the  payment  of  the  judgment,  and 
that  in  default  thereof,  the  defendant  and  sureties  will  pay  to  the  plaintiff  the  fuU 
value  of  the  property  so  released.  The  sheriff  may  fix  the  sum  for  which  the  un- 
dertaking shall  be  executed,  and  if  necessary,  in  fixing  such  sum,  to  know  the 
value  of  the  property  released,  the  same  may  be  appraised  by  three  disinterested 

Eersons,  to  be  apjiointed  by  the  sheriff;  and  if  any  sheriff  shall  release  any  property 
eld  by  him,  under  or  by  virtue  of  any  writ  of  attachment,  without  first  taking 
such  bond  as  herein  required,  or  shall  take  an  insufficient  bond,  he  and  his  sureties 
shall  be  liable  for  the  value  of  such  property  so  released. 

§  113. — The  defendant  may  also,  at  any  time  before  the  time  for  answering' 
expires,  apply  on  motion,  upon  reasonable  notice  to  the  plaintiff,  to  the  court  in 
which  the  action  is  brought,  or  to  the  judge  thereof,  that  the  attachment  be  dis- 
charged on  the  ground  that  the  \vrit  was  improperly  issued  for  any  reasons  appear- 
ing upon  the  face  of  the  papers  and  proceedings  in  the  action. 

§  114. — If,  on  such  application,  it  shall  satisfactorily  appear  that  the  writ  of 
attachment  was  improperly  issued,  it  shall  be  discharged. 

§  115. — The  sheriff  shall  return  the  writ  of  attachment  with  the  summons,  if 
issued  at  the  same  time;  otherwise  within  twenty  days  after  its  receipt,  with  a  cer- 
tificate of  his  proceedings  indorsed  thereon  or  attached  thereto. 

§  116. — In  all  cases  where  more  than  one  attachment  shall  be  issued  against  the; 
same  person  or  persons  and  retinmed  to  the  same  term  of  the  court  to  which  they 
are  returnable,  or  when  a  judgment  in  a  civil  action  shall  also  be  rendered  at  the 
same  term  against  the  defendant,  who  is  the  same  person  and  defendant  in  the 
attachment  or  attachments,  the  court  shall  direct  the  clerk  to  make  an  estimate  of 
the  several  amounts  each  attaching  or  judgment  creditor  will  be  entitled  to,  out  of 
the  property  of  the  defendant  attached,  either  in  the  hands  of  the  garnishee  or 
otherwise,  after  the  sale  and  receipt  of  the  proceeds  thereof  by  the  sheriff,  calcu- 
lating such  amount  in  proportion  to  the  amount  of  their  several  judgments,  with 
costs,  as  the  same  will  respectively  bear,  to  the  amount  of  the  sum  received,  so  that 
each  attaching  and  judgment  creditor  will  receive  his  just  part  thereof  in  propor- 
tion to  his  demand.  The  clerk  shall  thereupon  certify  the  several  amounts  thereof 
to  the  sheriff,  who  shall  pay  over  to  the  respective  parties  the  several  sums  so  cer- 
tified, and  indorse  such  payments  on  their  respective  executions;  provided,  that' 
when  the  property  sought  to  be  attached  shall  have  been  removed  from  the  county 
in  which  the  attachment  issued,  and  shall  be  overtaken  and  returned  to  such  county, 
the  claim  of  such  attaching  creditor  or,  creditors  shall  have  priority  over  other 
attachments  or  judgment.  •"'  ' 
II  Attachmbni — i. 


450  COLORADO. 

§  117. — If  at  any  time  pending  a  suit,  where  attachment  has  heen  issned  in 
aid  thereof,  as  provided  in  this  chapter,  it  .shall  apjiear  to  the  court  or  juJc^e  thereof 
in  which  the  suit  is  pending  that  the  bond  or  undertaking  given  is  insufficient,  or 
that  any  security  therein  has  died,  or  has  removed  from  tliis  state,  or  has  become, 
or  is  likely  to  become,  insolvent,  said  coiu-t  or  the  judge  thereof  in  vacation  shall 
order  another  bond  or  undertaking,  or  such  other  and  further  security  to  be  given 
as  shall  seem  proper,  ten  (10)  days'  previous  notice  in  writing  having  been  given  to 
the  plaintiff,  or  any  one  of  the  plaintiffs,  his  or  their  agent  or  attorney,  of  the 
application  for  such  order;  and  if  the  plaintiff  or  plaintiffs,  his  or  their  agent  or 
attorney,  or  other  person  for  him  or  them,  shall  fail  to  comply  with  such  order 
within  twenty  (20)  days  after  the  same  shall  be  made,  all  or  any  writs  of  attach- 
ment issued  therein  shall  be  quashed.  The  additional  undertaking  herein  required 
shall  be  the  same,  and  executed  in  the  same  manner  as  the  original,  required  in 
this  chapter,  and  the  sureties  therein  shall  be  jointly  and  severally  liable  with  those 
in  the  original  undertaking. 

§  118. — If  the  plaintiff,  his  agent  or  attorney,  shall  make  and  file  with  the  clerk 
an  affidavit  in  the  action,  stating  that  it  is  necessary  to  execute  the  writ  of  attach- 
ment on  the  Sabbath  day  to  secure  property  sufficient  to  secure  the  judgment  to 
be  obtained,  the  clerk  shall  indorse  on  the  writ  an  order  to  the  ofi&cer  directing  the 
writ  to  be  executed  on  the  Sabbath  day. 

§  119. — In  all  suits  hereafter  brought  in  this  state  to  recover  damages,  for  tres- 
pass on  any  lode  or  mining  property,  the  party  bringing  such  suit,  or  his  agent  or 
attorney,  may  make  an  affidavit  setting  foi-th  that  the  defendant  or  defendants  in 
such  suit  have  committed  a  trespass  or  trespasses  upon  any  lode  or  mining  prop- 
erty owned  or  possessed  by  the  f)laintiff  or  plaintiffs  in  such  suit,  describing  such 
lode  or  mining  property,  and  that  such  plaintiff  or  plaintiffs  have  sustained  sub- 
stantial damage,  and  that  he,  she  or  they  believe  that  such  plaintiff  or  plaintiffs 
will  recover,  and  ought  to  recover,  any  specified  sum  exceeding  twenty  dollars, 
stating  the  amount  that  he,  she  or  they  expect  ■will  and  ought  to  be  recovered.  A 
writ  of  attachment  shall  issue  against  the  goods,  chattels  and  real  estate  of  such 
defendant  or  defendants,  returnable  as  in  other  cases  of  attachment  prescribed  in 
this  chapter,  and  the  plaintiff  or  plaintiffs,  in  such  writ  of  attachment,  may  cause 
such  writ  of  attachment  to  be  levied  on  the  ore  or  quartz  taken  from  such  lode  or 
mining  property  by  the  defendant. 

§  120. — Xo  writ  of  attachment  shall  be  quashed,  nor  any  garnishee  discharged, 
nor  any  undertaking  given  by  any  jierson  or  persons  imder  proceedings  by  attach- 
ment he  rendered  invalid,  nor  any  rule  entered  against  a  sheriff  discharged,  on 
account  of  any  informality  or  insufficiency  of  the  original  affidavit,  or  of  the  orig- 
inal undertaking  given  for  the  attachment,  if  the  plaintiff  or  plaintiffs,  or  some 
credible  person,  or  his  or  their  agent  or  attorney  for  him  or  them,  shall  file  a  suffi- 
cient affidavit  in  the  cause,  or  if  the  plaintiff  or  plaintiffs,  or  some  credible  person, 
or  his  or  their  agent  or  attorney  for  him  or  them,  shall  make,  with  such  security  as 
is  required  by  this  act,  an  undertaking  to  be  apjjroved  by  the  court  in  which  said 
■suit  may  be  pending.  And  when  a  writ  of  attachment  shaU  be  held  to  be  defect- 
ive, the  same  shall  be  allowed  by  the  court  to  be  amended  in  such  time  and  manner 
as  it  may  direct,  and  thenceforth  the  suit  shall  proceed  as  if  such  defective  proceed- 
ings had  been  originally  sufficient.  And  if  on  the  trial  of  the  issues  formed  by  the 
traversing  of  the  allegations  in  the  affidavits  for  attachment  it  shall  appear  that  the 
evidence  introduced  by  the  plaintiff  does  not  prove  the  cause  or  causes  of  attach- 
ment alleged  in  the  affidavit,  but  the  evidence  does  tend  to  prove  some  other  cause 
of  attachment  mentioned  in  this  act,  then  the  plaintiff  may,  on  motion,  showing 
good  cause  therefor,  be  allowed  to  amend  his  affidavit  to  correspond  to  the  proof, 
the  same  as  pleadings  by  this  act  are  allowed  to  be  amended  in  case  of  variances. 

GARNISHMENT. 

§  1. — ^Whenever  a  judgment  shall  be  rendered  by  any  court  of  record  or  any 

justice  of  the  peace  in  this  state,  and  execution  against  the  defendant  or  defendants 
in  said  judgment  has  been  issued  and  delivered  to  the  proper  officer,  and  the  officer 
after  diligent  search  shall  not  be  able  to  find  property  of  the  defendant  or  defend- 
ants in  his  county  sufficient  to  satisfy  the  same,  the  officer  shall,  upon  request  of 
the  plaintiff,  his  agent  or  attorney,  summon  such  person  or  persons  as  the  plaintiff 
may  direct,  as  garnishees,  to  appear  before  the  court  or  justice  of  the  peace  from 
which  the  execution  issued;  if  before  a  court  of  record,  the  summons  shall  be  made 
returnable  and  be  served  the  same  as  other  summonses  in  courts  of  record;  if  be- 
fore a  justice  of  the  peace,  the  summons  shall  be  made  returnable  withinthe  same 
time  and  served  in  the  same  manner  as  ordinary  smnmons  issued  by  justice  of  the 
peace.    The  summons  may  be  in  substance  as  follows,  viz. : 


COLORADO.  451 

A ■ —  B ,  plaintiff,    "J      To  E F ,  garnishee:  You  are  hereby  noti- 

vs.  >fiecl  that  you  are  attached  as  garnishee  in  the  above 

C D ,  defendant,  j  entitled  cause,  and  you  are  required  not  to  pay  any 

debt  due  or  to  become  due,  from  yourself  to  the  said  C D ,  and  that 

you  must  retain  possession  and  control  of  all  personal  property,  effects  and  chosea 

in  action  of  the  said  C D ,  in  order  that  the  same  may  be  dealt  with 

according  to  law.     And  you  are  hereby  commanded  to  be  and  appear  before  (nam- 
ing the  court  or  justice,  as  the  case  may  be)  at ,  on  the day  of , 

18 — ,  at o'clock M.,  to  answer  what  may  be  objected  against  you  in 

that  behalf.  , 

Dated ,  18—.    [Sec.  1,  pp.  76-7,  acts  1879.]  (Signed  by  officers.) 

§  2. — It  shall  not  be  necessary  that  the  officer  shall  have  first  returned  his  exe- 
cution to  the  court  or  justice  before  serving  said  summons.  The  return  of  such 
summons  to  the  court  or  justice,  as  the  case  may  be,  showing  due  service  on  the 
person  or  persons  therein  named  as  garnishees,  shall  be  the  commencement  of  pro- 
ceedings against  the  said  garnishees,  and  the  court  or  justice  shall  examine  and 
proceed  against  such  garnishee  or  garnishees,  served  with  summons,  as  hereinafter 
provided.     [Sec.  2,  p.  77,  acts  1879.] 

§  3. — Whenever  any  person  shall  be  summoned  as  garnishee  (under  any  writ  of 
attachment),  or  as  provided  in  section  one  (1)  of  this  act,  the  plaintiff,  his  agent  or 
attorney  may  direct  the  officer,  at  the  time  of  serving  the  process  or  thereafter,  to 
take  the  answer  of  the  garnishee;  or  whenever  any  person  summoned  as  garnishee 
as  aforesaid  shall  desire  to  exonerate  himself  from  further  liability  or  attendance 
at  court,  he  may  do  so  (except  as  otherwise  provided  in  this  act)  by  making  and 
subscribing  an  answer.     [Sec.  3,  p.  77,  acts  1879.] 

§  4. — In  all  cases  mentioned  in  the  preceding  section  the  answer  of  the  garnishee 
shall  be  under  oath,  in  writing,  and  the  officer  serving  the  writ  of  attachment  or 
garnishee  summons  shall  administer  the  oath,  take  the  answer,  and  append  the 
same  to  his  return  of  the  process  served.  The  interrogatories  and  oath  may  be  in 
substance  as  follows: 

1.  Are  you  in  any  manner  indebted  to  the  defendant,  C D ,  either 

property  or  money,  and  is  the  same  now  due?    If  not  due,  when  is  the  same  to  be- 
come due?    State  fully  all  particulars.     Answer. 

2.  Have  you  in  your  possession,  in  your  charge,  or  under  your  control,  any 
property,  effects,  goods,  chattels,  rights,  credits  or  choses  in  action  of  said  defend- 
ant, or  in  which  he  is  interested?  If  so,  state  what  is  the  value  of  the  same,  and 
state  fully  all  particulars.    Answer. 

3.  Do  you  know  of  any  debts  owing  to  the  said  defendant,  whether  due  or  not 
due,  or  any  property,  effects,  goods,  chattels,  rights,  credits  or  choses  in  action,  be- 
longing to  him,  or  in  which  he  is  interested,  and  now  in  the  possession  or  xinderthe 
control  of  others?    If  so,  state  the  particulars.    Answer. 


(Signature  of  garnishee. ) 
I  (insert  the  name  of  garnishee)  do  solemnly  swear  (or  affirm)  that  the  answers 
to-the  foregoing  interrogatories  by  me  subscribed  are  true,  so  help  me  God. 

(Signature  of  gamisheei) 
Subscribed  and  sworn  to  before  me,  this ,  18 — . 

[Sec.  4,  pp.  77-8,  acts  1879.]  (Si^ature  of  officer.) 

_  §  5.  —If  the  garnishee  refuses  to  answer  fully  and  unequivocally  all  the  fore- 
going interrogatories,  he  shall  be  summoned  by  the  officer  and  required  to  appear 
before  the  court  or  justice  as  provided  in  section  one  (1)  of  this  act,  and  to  answer 
before  the  com-t  or  justice  all  the  interrogatories  prescribed  in  the  preceding  sec- 
tion, and  such  other  questions  as  the  court  or  justice  may  think  proper  and  right. 
[Sec.  5,  pp.  78-9,  acts  1879.] 

§  6. — After  answer  the  garnishee  may  pay  to  the  officer  the  amount  of  money 
he  so  confesses  to  be  due  and  owing  by  him  to  the  defendant,  and  deliver  to  the 
officer  the  property  and  effects  in  his  possession,  charge,  or  under  his  control,  and 
thereupon  l3e  relieved  from  attendance  at  coiu-t  unless  further  summoned.  In  such 
case  the  officer  shall  receipt  to  the  garnishee  for  the  money  and  property  received; 
and  if  the  action  be  attachment  he  shall  hold  the  same  until  the  final  determina- 
tion of  the  suit,  unless  the  same  be  of  a  perishable  nature;  if  the  proceeding  be 
upon  judgment,  as  provided  in  section  one  of  this  act,  the  officer  shall  sell  the  prop- 
erty, giving  the  usual  previous  notice,  as  in  other  cases,  and  apply  the  proceeds  of 
sale  and  moneys  so  received  from  the  garnishee  to  the  satisfaction  of  the  execution 
in  his  hands  against  the  defendant.    Should  there  be  any  surplus  money  or  prop- 


452  COLORADO. 

erty  unsold  in  the  hands  of  the  officer  after  paying  the  cost  of  gamisheeing  and 
Batisfaction  of  the  execution  against  the  defendant,  he  shall  pay  and  deliver  the 
same  to  the  defendant  without  delay.     [Sec.  6,  p.  70,  acts  1879.]       ., 

§  7. — After  answer  of  the  garnishee,  in  any  case,  is  made,  either  before  the  of- 
ficer or  in  coui-t,  the  plaintiff,  his  agent  or  attorney,  may  controvert  the  whole  or 
any  part  of  said  answer,  by  filing  in  court,  or  before  the  justice,  an  affidavit  tra- 
versing any  of  the  facts  set  forth  in  such  answer  (such  affidavit  may  be  upon  infor- 
mation and  belief);  thereupon  a  scire  facias  shall  issue  and  be  served  upon  such 
garnishee  (unless  he  be  already  in  court)  requiring  him  to  appear  before  the  court 
or  justice  upon  a  day  named  therein.  Issue  so  joined  without  further  pleadings 
shall  be  tried  as  other  trials  at  law  are  conducted;  and  if  the  finding  of  the  court, 
or  justice  of  the  peace,  or  the  verdict  of  the  jury,  shall  be  against  the  garnishee, 
judgment  shall  be  given  against  him  in  the  same  manner  as  if  the  fact  had  been 
admitted  by  him,  with  the  "costs  of  such  trial,  and  the  moneys  or  property  in  the 
hands  of  garnishee  or  officer  shall  be  by  the  court  applied  to  the  payment  of 
the  i^laintiffs  judgment  against  the  defendant.  If  the  finding  or  verdict  shall  be 
in  favor  of  the  garnishee,  he  shall  recover  his  costs  against  the  plaintiff.  And  in 
case  the  garnishee  admits  indebtedness  to  the  defendant,  he  shall  not  be  liable  for 
costs.     [Sec.  7,  pp.  79-80,  acts  1879.] 

§  S. — If  any  garnishee,  having  refused  to  answer  before  the  officer,  or  simimoned 
to  appear  as  provided  by  the  preceding  sections,  being  duly  served  with  process,  as 
provided  by  this  act,  shall  fail  to  appear  at  the  time  and  i:»lace  in  the  process  fixed 
for  his  appearance,  default  may  be  taken  against  such  garnishee,  and  a  conditional 
judgment  may  be  rendered  against  such  garnishee  for  the  full  amoimt  of  the  judg- 
ment rendered  against  the  debtor  in  the  original  action  and  costs.  Thereupon  a 
scire  facias  may  issue  out  of  the  co\u-t  where  such  proceeding  is  pending,  command- 
ing such  garnishee  to  appear  at  said  court  on  the  return  day  of  said  wTit,  and  to 
show  cause  why  such  judgment  should  not  be  made  final  and  conclusive;  which  said 
scire  facias  shall,  if  issued  out  of  the  district  or  county  coiul;,  be  returnable  in 
twenty  days,  and  shall  be  served  upon  such  garnishee  at  least  ten  days  before  the 
return  day,  and  if  issued  out  of  justice  court,  shall  be  retiurnable  in  five  days  from 
its  issuance,  and  shall  be  served  upon  the  garnishee  at  least  three  days  before  the 
retiUTi  day;  and  if  such  garnishee  shall  fail  to  appear  at  such  court  or  before  such 
justice,  on  the  return  day  of  such  sdre  facias,  said  conditional  judgment  shall  be 
made  final  and  conclusive.     [Sec.  8,  p.  80,  acts  1879.] 

§  9. — If  it  appears  that  any  goods,  chattels,  choses  in  action,  credits  or  effects  in 
the  hands  of  a  garnishee  are  claimed  by  any  other  person,  by  force  of  an  assignment 
from  the  defendant,  or  otherwise,  the  court  or  justice  of  the  peace  shall  permit 
such  claimant  to  appear  and  maintain  his  right.  The  court  or  justice  mav,  in  its 
discretion,  adj  ourn  the  case  not  exceeding  five  days  for  the  purpose  of  giving  the 
claimant  such  notice  as  it  may  direct.     [Sec.  9,  p.  80,  acts  1879.] 

§  10. — If  such  claimant  appears,  he  may  be  admitted  as  a  party  to  the  suit,  as 
far  as  respects  his  title  to  the  property  in  question,  and  may  allege  and  prove  any 
facts  not  stated  nor  denied  by  the  garnishee;  and  such  allegations  shall  be  made, 
tried  and  determined  in  the  manner  hereinbefore  provided.  If  such  jierson  shall 
fail  to  appear,  after  having  been  served  with  notice  in  the  manner  directed,  he 
shall  nevertheless  be  concluded  by  the  judgment  in  regard  to  his  claim.  [Sec.  10, 
pp.  80-1,  acts  1879.] 

§  11. — Every  garnishee  shall  be  allowed  to  retain  or  deduct  out  of  the  property, 
effects  or  credits  in  his  hands  aU  demands  against  the  plaintiff,  and  all  demands 
against  the  defendant  of  which  he  could  have  availed  himself  if  he  had  not  been 
summoned  as  garnishee,  whether  the  same  are  at  the  time  due  or  not,_and  whether 
by  way  of  set-off  on  a  trial,  or  by  the  set-off  of  judgments  or  executions  between 
himself  and  the  plaintiff  and  defendant  severally;  and  he  shall  be  liable  for  the 
balance  only  after  all  mutual  demands  between  himself  and  plaintiff  and  defendant 
are  adjusted,  not  including  unliquidated  damages  for  wrongs  and  injuries:  Pro- 
vided, that  the  verdict  or  finding,  as  well  as  the  record  of  the  judgment,  shall  show 
in  all  cases  against  which  party,  and  the  amount  thereof,  any  set-off  shall  be  al- 
lowed, if  any  such  shall  be  allowed.     [Sec.  11,  p.  81,  acts  1879.] 

§  12. — No  person  shall  be  liable  as  a  garnishee  by  reason  of  having  drawn,  ac- 
cepted, made  or  indorsed  any  negotiable  instrument,  when  the  same  is  not  due,  in 
the  hands  of  the  defendant  at  the  time  of  service  of  the  garnishee,  summons,  or  the 
rendition  of  the  judgment.     [Sec.  12,  p.  81,  acts  1879.] 

§  1.3. — The  judgment  against  a  garnishee  shall  acquit  him  from  all  demands  by 
the  defendant  for  all  goods,  effects  and  credits  paid,  delivered  or  accounted  for 
by  the  garnishee  by  force  of  such  judgment.     [Sec.  13,  p.  81.  acts  1879.] 


COLORADO.  453 

§  14. — If  the  person  summoned  as  garnishee  is  discharged,  the  judgment  shall 
be  no  bar  to  ai^action  brought  against  liim  by  the  defendant  for  the  same  demand. 
[Sec.  14,  p.  81,^cts  1879.] 

§  15. — Wlien  judgment  is  rendered  against  any  garnishee  and  it  shall  appear 
that  the  debt  from  him  to  the  defendant  is  not  yet  due,  execution  shall  not  issue 
until  the  debt  shall  have  become  due.     [Sec.  15,  p.  81,  acts  1879.] 

§  16. — When  any  garnishee  has  any  goods,  chattels,  choses  in  action,  or  effects 
other  than  money,  belonging  to  the  defendant,  or  which  he  is  bound  to  deliver  to 
him,  he  shall  deliver  the  same,  or  so  much  thereof  as  may  be  necessary,  to  the  offi- 
cer who  shall  hold  the  execution  in  favor  of  the  plaintiff  in  the  attachment  suit  or 
judgment,  which  shall  be  sold  by  the  officer,  and  the  proceeds  applied  and  ac- 
counted for  in  the  same  manner  as  other  goods  and  chattels  taken  on  execution. 
[Sec.  16,  p.  82,  acts  1879.] 

§  17. — AVhen  it  shall  appear  that  such  goods,  chattels,  choses  in  action  or  effects 
in  the  hands  of  a  garnishee  are  mortgaged  or  pledged,  or  in  any  way  liable  for  the 
payment  of  a  debt  to  him,  the  plaintiff  may  be  allowed,  under  an  order  of  the 
court  or  justice  of  the  peace  for  that  piu-pose,  to  pay  or  tender  the  amount  due  to 
the  garnishee;  and  he  shall  thereupon  deliver  the  goods,  chattels,  choses  in  action 
and  effects,  in -the  manner  before  provided,  to  the  officer  who  holds  the  execution. 
[Sec.  17,  p.  82,  acts  1879.] 

§  18.— If  the  goods,  chattels,  choses  in  action  or  effects  are  held  for  any  purpose 
other  than  to  secure  the  pajnnent  of  money,  and  if  the  contract,  condition  or  other 
thing  to  be  done  or  performed  is  such  as  can  be  performed  by  the  plaintiff  without 
damage  to  the  other  parties,  the  court  or  justice  of  the  peace  may  make  an  order 
for  the  performance  thereof  by  him.  Upon  such  performance  or  a  tender,  the 
garnishee  shall  deliver  the  goods,  chattels  and  effects  in  the  manner  before  pro- 
vided to  the  officer  who  holds  the  execution.     [Sec.  18,  p.  82,  acts  1879.] 

§19. — All  goods,  chattels,  choses  in  action  and  effects  received  by  the  officer 
under  either  of  the  two  preceding  sections  shall  be  sold  and  disposed  of  in  the  same 
manner  as  if  they  had  been  taken  on  an  execution  in  any  other  manner,  except 
that  from  the  proceeds  of  the  sale  the  officer  shall  repay  the  plaintiff  the  amount 
paid  by  him  to  the  garnishee  for  the  redemption  of  the  same,  with  interest  thereon, 
or  shall  indemnify  the  plaintiff  for  any  other  act  or  thing  by  him  done  or  per- 
formed, pursuant  to  the  order  of  the  court  or  justice  of  the  peace,  for  the  redemp- 
tion of  the  same.     [Sec.  19,  p.  82,  acts  1879.] 

§  20. — If  any  garnishee  refuses  or  neglects  to  deliver  any  goods,  chattels,  choses 
in  action  or  effects  in  his  hands  when  thereto  lawfully  required  by  the  court  or 
justice  of  the  jieace  or  officer  having  an  execution  upon  which  the  same  may  be 
received,  he  shall,  if  the  proceeding  be  in  a  court  of  record,  be  liable  to  be  attached 
and  punished  for  contempt,  or  the  court  may  enter  up  judgment  for  the  amount  of 
the  plaintiff's  judgment  and  costs,  and  award  execution  thereon  against  the  gar- 
nishee, or,  if  the  proceedings  be  before  a  justice  of  the  peace,  be  liable  to  the  plaint- 
iff for  the  full  amount  of  his  judgment  and  costs  against  the  defendant,  and 
judgment  may  be  entered  against  him  therefor.     [Sec.  20,  p.  83,  acts  1879.] 

§  21. — The  court  or  justice  of  the  peace  may  order  the  costs  of  the  proceedings 
in  any  garnishment  to  be  paid  by  the  plaintiff,  or  out  of  the  effects  or  credits  gar- 
nished, or  by  the  garnishee,  or  may  apportion  the  same  as  shall  appear  to  be  just 
and  equitable.  The  garnishee  shall  be  entitled  to  fees,  when  he  does  not  resist  or 
make  costs  when  judgment  is  rendered  against  him,  the  same  as  witnesses  before 
the  same  courts  in  civU  cases.     [Sec.  21,  p.  83,  acts  1879.] 

§  22. — All  trials  under  this  act,  except  as  otherwise  provided,  shall  be  conducted 
as  other  trials  at  law,  with  or  without  jury;  if  the  trial  be  in  a  court  of  record,  then 
according  to  the  practice  in  courts  of  record;  if  before  a  justice  of  the  peace,  then 
the  same  shall  be  conducted  according  to  the  practice  in  justices'  courts:  Provided, 
nothing  contained  in  this  act  shall  require  either  party  to  file  written  pleadings 
before  a  justice  of  the  peace.  If  the  finding  of  the  court  or  justice,  or  verdict  of 
the  jury,  in  any  case  shall  be  against  the  garnishee,  judgment  may  be  entered 
against  the  garnishee  in  favor  of  the  defendant  for  the  use  and  benefit  of  the  plaint- 
iff.    (Sec.  22,  p.  83,  acts  1879.] 

§  2.3.— An  appeal  may  be  taken  from  any  judgment  or  final  order  of  the  court 
or  justice  of  the  peace,  by  any  party  to  any  proceeding  under  this  act,  in  like  man- 
ner as  appeals  are  taken  in  other  cases.     [Sec.  23,  p.  83,  acts  1879.] 

§  24. — The  word  "plaintiff,"  as  used  in  this  act,  shall  be  construed  to  mean  the 
judgment  or  execution  creditor;  the  word  "defendant,"  the  judgment  or  executioa 


454  CONNECTICUT. 

debtor;  and  the  word  "officer,"  the  sheriff,  constable  or  other  office*  ajecatlngthe 
process  of  the  court  or  justice.    [Sec.  24,  pp.  83-4,  acts  1879.]         ^ 


On  appeals,  effect — §§  350-356. 
Writ  may  issue  on  Sunday — §  410. 
Debtors'  earnings  exempt — §  226. 
Undertaking,  solvency  of  surety — §  414. 
Sale  of  attached  property— §  415. 


CONNECTICUT. 

[General  Statutes,  1875,  and  subsequent  Statutes.] 


SERVICE  OF  MESNE  PROCESS,  ATTACHMENTS,  AND  INTERESTS  THEREBY  ACQUIRED. 

§  1. — AB.  processes,  returnable  to  the  supreme  court  of  errors,  shall  be  served 
at  least  thirty  days  inclusive  before  the  day  of  the  sitting  of  the  court;  all  return- 
able to  the  superior  court,  court  of  common  pleas,  or  district  court,  at  least  twelve 
days  inclusive  before  said  day;  and  all  returnable  to  a  justice  of  the  peace,  at  least 
six  days  inclusive,  before  said  day. 

§  2. — All  process,  if  returnable  to  the  supreme  coiut  of  errors,  shall  be  returned 
to  its  clerk  at  least  twenty  days,  and  if  retiuTiable  to  the  superior  court,  to  its 
clerk  at  least  six  days,  and  if  returnable  to  the  court  of  common  pleas,  or  district 
court,  to  its  clerk  at  least  forty-eight  hours,  and  if  returnable  to  a  justice  of  the 
peace,  to  such  justice  of  the  peace  at  least  twenty -four  hours  before  the  day  of  the 
sitting  of  the  court. 

§3. — A  summons  or  citation  shall  be  served  by  the  officer's  reading  it  in  the 
hearing  of  the  defendant,  or  leaving  an  attested  copy  thereof,  and  of  the  declara- 
tion or  petition  accompanying  the  same,  at  the  i^lace  of  his  usual  abode.  An 
attachment  shall  be  served  by  attaching  the  estate  of  the  defendant,  personal  or 
real,  or  both,  and,  if  none  can  be  found,  by  attaching  his  person,  when  liable  to 
attachrnent.  When  the  body  of  the  defendant  is  attached,  the  officer  shall  read 
the  writ  and  declaration  in  his  hearing;  and,  in  every  case  of  attachment,  the 
officer  serving  the  process  shall  leave  with  the  person  whose  estate  or  body  is 
attached,  or  at  the  place  of  his  usual  abode,  if  within  the  state,  a  true  and  attested 
copy  of  the  process  and  of  the  accompanying  declaration  or  petition,  and  of  his 
retiuTi  thereon,  describing  any  estate  attached. 

§  4. — Real  estate  shall  be  attached  by  the  officer's  lodging  with  the  toxvn  clerk 
of  the  town,  in  which  it  is  situated,  a  certificate  that  he  has  made  such  attach- 
ment, which  shall  be  indorsed  by  the  town  clerk  with  a  note  of  the  precise  time  of 
its  reception,  and  kept  on  file,  open  to  public  inspection,  in  the  office  of  said  town 
clerk;  and  said  attachment,  if  completed  as  hereinafter  provided,  shall  be  consid- 
ered as  made  when  such  certiiicate  is  so  lodged.  The  certificate  shall  be  signed 
by  such  officer,  shall  descrilje  the  land  attached  with  reasonable  certainty,  and 
shall  specify  the  parties  to  the  suit,  the  court  to  which  the  process  is  returaable, 
and  the  amount  of  damages  claimed;  and  he  shall,  within  four  days  thereafter,  leave 
in  the  office  of  such  town  clerk  a  certified  copy  of  the  process  under  which  the  attach- 
ment was  made,  with  an  indorsement  of  his  doings  thereon;  and  unless  the  ser^ace 
shall  be  so  completed,  such  estate  shall  not  be  holden  against  any  other  creditor  or 
bona  fide  i^urchaser.     [Amended  Stats.  1S83,  p.  246.] 

§  5. — No  attachment,  in  any  suit  against  a  copartnership,  of  the  private  estate 
of  any  of  its  members,  shall  be  valid,  unless  his  name  shall  be  set  forth  in  the  proc- 
ess at  the  time  of  the  attachment. 

§  6. — Eights  or  shares  in  the  stock  of  any  corporation,  together  with  the  divi- 
dends and  profits,  due  and  growing  due  thereon,  may  be  attached  and  taken  on 


CONNECTICUT.  455 

execution.  Sucli  attachment  shall  be  made  by  leaving  a  true  and  attested  copy  of 
the  process,  and  of  the  accompanying  declaration  or  petition,  with  the  proper  in- 
dorsement thejjeon  of  the  officer  serving  the  same,  as  in  other  cases,  with  the 
defendant,  or  at  his  usual  place  of  abode,  if  within  this  state,  and  with  the  secre- 
tary, clerk,  or  cashier  of  such  corporation,  or  if  such  corporation  has  no  secretary, 
clerk,  or  cashier,  or  if  he  is  absent  out  of  this  state,  then  at  the  principal  place,  in 
this  state,  where  such  corjjoration  transacts  its  business  or  exercises  its  corporate 

Sowers;  and  such  rights  or  shares,  together  with  the  dividends  and  profits,  shall  be 
olden  to  respond  to  the  judgment  which  may  be  recovered  in  said  action,  for  sixty 
days  only  after  its  rendition;  and  when  an  officer,  with  a  writ  of  attachment,  shall 
apply  to  such  secretary,  clerk,  or  cashier,  for  the  purpose  of  attaching  such  rights 
or  shares,  the  secretary,  clerk,  or  cashier  shall  furnish  him  with  a  certificate,  under 
his  hand,  in  his  official  capacity,  specif  jdng  the  number  of  rights  or  shares  which 
the  defendant  holds  in  the  stock  of  such  corporation,  with  the  incumbrances 
thereon,  if  any,  and  the  amount  of  dividends  thereon  due. 

§  7. — Leasehold  interests  in  real  estate,  oyster-lots  or  beds,  franchises  issuing 
out  of  real  estate,  and  any  interest  in  buildings  owned  by  one  person  on  the  land 
of  another,  may  be  attached  in  the  same  manner  as  real  estate. 

§  8. — In  suits  against  towns,  societies,  communities,  or  corporations,  the  service 
of  the  process  by  the  officer  by  leaving  a  true  and  attested  copy  of  it,  and  of  the 
accompanying  declaration  or  petition,  with  or  at  the  usual  jilace  of  abode  of  their 
clerk,  or  either  of  the  selectmen  or  committee,  or  the  secretary,  or  cashier,  or  in 
the  case  of  a  private  corporation  having  no  secretary  or  cashier,  at  the  principal 
place  in  this  state  where  such  corporation  transacts  its  business  or  exercises  its 
corporate  powers,  shall  be  sufficient. 

§  9. — In  suite  against  such  voluntary  associations  as  are  liable  to  be  sued,  serv- 
ice of  process  may  be  made  upon  the  i^residing  officer,  secretarj',  or  treasiu'er.  The 
property  of  any  such  association,  \vhether  held  liy  such  association  or  in  the  hands 
of  trustees  for  its  benefit,  may  be  attached  and  held  to  respond  to  any  judgment 
that  may  be  recovered  against  it;  but  the  individual  property  of  its  members  shall 
not  be  liable  to  attachment  or  levy  of  execution  in  such  suit. 

§  10. — When  any  administrator  or  executor  shall  reside  out  of  this  state,  a  copy 
of  the  process  and  declaration  or  petition  in  any  action  against  him  in  his  repre- 
sentative cai^acity,  may  be  left  with  the  judge  of  the  court  of  i^robate  of  the  dis- 
trict where  administration  was  granted  or  the  will  proved;  which  shall  be  notice 
to  such  executor  or  administrator  that  the  action  is  pending;  and  such  judge  shall 
forthwith  give  notice  thereof  to  such  executor  or  administrator. 

§  11. — When  the  defendant  is  not  a  resident  or  inhabitant  of  this  state,  and  has 
estate  within  the  same  which  is  attached,  a  copy  of  the  process  and  declaration  or 
petition,  with  a  return  describing  the  estate  attached,  shall  be  left  by  the  officer 
with  the  agent  or  attorney  of  the  defendant  in  this  state;  and  when  land  is  at- 
tached, a  like  copy  shall  be  left  in  the  office  of  the  clerk  of  the  town  where  the 
land  lies,  as  in  cases  where  the  defendant  belongs  to  this  state;  and  if  the  defend- 
ant has  no  agent  or  attorney  within  this  state,  a  Uke  coi^y  shall  be  left  with  him 
who  has  charge  or  possession  of  the  estate  attached. 

§  12. — When  any  corporation,  engaged  in  transacting  business  in  any  other 
town  than  that  in  which  its  secretary  or  clerk  resides,  shall  be  named  as  agent, 
trustee,  or  debtor  of  the  defendant  in  any  action  commenced  by  process  of  foreign 
attachment,  service  may  be  made  upon  such  corporation  by  some  proper  officer 
by  leaving  a  true  and  attested  copy  thereof,  at  least  twelve  days  before  the 
process  is  returnable,  with  or  at  the  usual  place  of  abode  of  its  secretary 
or  clerk,  or  any  agent  or  clerk  employed  by  said  corporation  to_  keep  its 
accoimts,  or  pay  its  employees  in  the  town  where  it  transacts  business,  and 
where  any  moneys,  which  may  be  owing  to  the  defendant,  are  due  and  payable. 
And  when  the  plaintiff  shall  recover  judgment  in  any  suit  so  brought  and  obtain 
execution  for  the  same,  a  demand  by  the  officer  serving  such  execution  on,  or  at 
the  usual  place  of  abode  of  the  secretarj^  agent,  or  clerk  of  said  corporation  with 
whom  service  was  originally  made,  will  be  a  sufficient  demand  of  such  corporation. 
[Amended  Stats.  1877,  p.  171..1 

§  1.3. — When  in  any  action  commenced  by  process  of  foreign  attachment,  any 
partnership,  the  business  of  which  is  transacted  by  one  or  more  of  the  partners 
exclusively,  or  by  an  agent  or  agents,  is  named  by  tho  title  of  such  partnership  as 
agent,  trustee,  or  debtor  of  the  defendant,  service  of  such  writ  may  be  made  upon 
such  partnership,  by  tlie  officer's  leaving  a  true  and  attested  copy  thereof,  at  least 
twelve  days  before  the  ^vl■it  is  returnable,  with,  or  at  the  usual  place  of  abode  of 
the  members  of  such  partnership,  or  such  acting  pai-tner  or  partners,  agent  or 


45  G  CONNECTICUT. 

agents;  and  the  plaintiff,  at  any  time  before  final  judgment  in  said  suit,  may 
amend  sakl  process  without  costs,  by  inserting  the  names  of  the  persons  composing 
eaid  copartnership. 

§14. — Process  of  foreign  attachment,  when  the  garnishee  does  not  reside  in 
this  state,  but  is  engaged  in  the  transaction  of  business  therein  by  an  agent  or 
agents,  may  be  served  on  such  garnishee,  by  leaving  a  true  and  attested  copy  of 
such  process  with  such  agent  or  agents,  at  least  twelve  days  before  the  writ  is 
returnable;  and  if  the  plaintiff  recover  judgment  in  said  actions,  all  the  effects  of 
the  defendant,  which  were  in  the  hands  of  the  agent  of  such  garnishee  in  this  state, 
at  the  time  such  copy  of  said  process  was  so  left  with  him,  and  the  debt  due  from 
such  garnishee  to  the  defendant  shall  be  liable  for  the  pajTnent  of  said  judgment. 

§  15. — Xo  estate,  which  has  been  attached,  shall  be  held  to  respond  to  the 
judgment  oljtaincd  in  the  suit,  either  against  the  debtor  or  any  other  creditor,  un- 
less the  judgment  creditor  shall  take  out  an  execution  and  have  it  levied  on  the 
personal  estate  attached,  or  demand  made  on  the  garnishee  in  cases  of  foreign  at- 
tachment, within  sixty  days  after  final  judgment,  or  levied  on  the  real  estate 
attached,  and  the  same  appraised,  and  the  execution  and  proceedings  thereon  re- 
corded vvdtliin  four  months  after  such  judgment;  or  if  said  goods  or  estate  are 
encumbered  by  any  prior  attachment,  unless  the  execution  shall  be  so  levied, 
within  the  respective  times  aforesaid,  after  such  incumbrance  is  removed;  except- 
ing only  in  case  of  a  foreign  attachment  against  an  executor,  administrator,  or 
trustee  in  insolvency,  upon  whom  demand  shall  be  made  within  the  times  limited 
in  the  forty-seventh,  forty-eighth,  and  foi-ty-ninth  sections  of  chapter  xvi  of 
this  title.  But  in  reckoning  said  periods  within  which  the  attaching  creditor  is  so 
required  to  take  out  and  levy  execution,  any  time  during  which  the  issue  or  le\y 
of  an  execution  may  be  prevented  or  stayed  by  the  pendency  of  a  writ  of  error,  or 
by  an  injunction  or  other  legal  stay  of  execution,  shall  be  excluded  from  the 
computation. 

§  IG. — Attachments  of  machinery,  engines,  or  implements,  situated  and  used  in 
any  manufacturing  or  mechanical  establishment,  or  of  the  household  fumitiu-e  of 
any  person  having  a  family,  and  used  by  him  in  housekeeping,  or  of  hay  or  un- 
threshed  grain  deposited  in  any  building,  or  of  any  crop  deposited  in  a  building, 
which  cannot,  in  the  opinion  of  the  officer  levying  upon  the  same,  be  moved  ■ttdlh- 
out  manifest  injury,  shall  be  effectual  to  hold  the  same,  without  any  removal 
thereof,  provided  the  service  of  said  attachment  shall  be  completed,  and  a  copy  of 
the  process  and  of  the  accompanying  declaration  or  petition,  with  the  officer's  re- 
tiu-n  indorsed  thereon,  particularly  describing  the  property  attached,  shall  be  filed 
in  the  office  of  the  clerk  of  the  town  in  which  such  jjroperty  shall  be  situated, 
within  twenty-four  hours  after  such  attachment  shall  have  been  made;  and  when 
the  levy  is  upon  any  such  hay,  luithreshed  grain,  or  crops,  the  officer  shall  also 
post  a  notice  of  his  attachment  on  the  outer  door  of  the  building  in  which  such 
property  is  situated. 

§  17. — When  any  live  stock,  or  other  personal  property  in  its  nature  perishable 
or  liable  to  depreciation,  or  the  custody  and  proper  preservation  of  which  would 
be  difficult  or  expensive,  shall  be  attached,  either  pai-ty  to  the  suit  may  apply  to 
any  judge  of  the  superior  court,  court  of  common  pleas,  or  district  com-t,  or  to  a 
county  commissioner  residing  in  the  county  where  such  property  was  attached,  for 
an  order  to  sell  the  same,  and  thereupon,  after  such  reasonable  notice  to  the  ad- 
verse party  as  such  judge  or  commissioner  shall  direct,  and  iipon  satisfactory  proof 
that  such  sale  is  necessary  and  proper,  and  payment  of  his  fees  by  the  i)arty  making 
said  apiilication,  he  may  order  such  projierty  to  be  sold  by  the  officer  who  attached 
the  same,  or,  in  case  of  his  inability,  by  the  sheriff  of  the  county,  or  by  any  of  his 
deputies,  or  any  indifferent  person  who  may  be  requested  in  ^\Titing  so  to  do  by 
said  attaching  officer,  at  public  auction,  at  such  time  and  place,  and  upon  such 
notice  as  said  judge  or  commissioner  shall  deem  reasonable;  and  he  may,  at  his 
discretion,  order  the  officer  making  such  sale  to  deposit  the  avails  with  the  justice 
before  whom,  or  the  clerk  of  the  court  to  which  said  process  is  retiu-nable,  subject 
to  the  order  of  the  court  having  final  jurisdiction  of  said  caiise. 

§  18. — When  the  plaintiff  intends  to  make  application  for  such  a  sale,  the  prop- 
erty shall  be  appraised  by  three  disinterested  freeholders  of  the  town  where  it  was 
taken,  to  be  chosen,  appointed  and  sworn,  and  to  make  their  return  to  the  officer, 
in  the  same  manner  as  appraisers  of  real  estate  taken  by  execution;  a  certificate  of 
which  appraisement,  signed  by  at  least  two  of  them,  shall  be  presented  to  the 
judge  or  commissioner  to  whom  the  plaintiff  shall  apply  for  such  order  of  sale;  and 
before  any  order  shall  be  made  upon  application  of  the  plaintiff,  he  shall  give  bond, 
witli  surety,  to  the  adverse  party,  to  the  acceptance  of  said  judge  or  commissioner, 
in  double  the  amount  of  the  value  of  said  property,  conditioned  that  he  shall  i^ros- 


CONNECTICUT.  457 

ecute  his  action  to  effect,  and  pay  all  damages  •which  the  adverse  party  may  stis- 
tain  by  the  sale  of  said  property  at  less  than  its  ai^praised  value,  with  interest 
thereon. 

§  19.  — The  costs  of  the  appraisal  shall  be  paid  by  the  officer,  and  charged  in  hLs 
fees;  and  the  expenses,  thus  incurred  by  either  party,  shall  be  taxed  as  part  of  the 
costs  in  the  cause;  and  the  officer  who  serves  said  writ  shall  make  return  of  what 
has  been  done  in  the  premises,  to  the  court  to  which  said  writ  is  returnable. 

Stats.  1877,  p.  105,  amends  §§  18  and  19  of  chapter  5,  title  19. — In  all  actions 
by  foreign  attachment  brought  to  either  of  the  courts  mentioned  in  the  first  sec- 
tion [courts  of  common  pleas  in  counties  of  Hartford,  New  Haven,  or  Fairfield],  if 
the  defendant  does  not  appear,  any  garnishee  may  be  admitted  to  defend  his  prin- 
cipal; but  if  the  defendant  is  not  in  this  state,  and  does  not  appear,  by  himself  or 
attorney,  and  the  garnishee  does  not  appear  to  defend,  the  court  shall  continue  the 
action  for  the  period  of  three  months  from  the  day  on  which  the  writ  therein  is 
retiu-nable,  and  may  order  such  notice  of  the  action  to  be  given  to  the  defendant 
as  it  shall  deem  jiroper,  and  if  the  defendant  should  not  then  appear,  then,  unless 
some  special  matter  be  alleged  for  further  delay,  the  cause  shall  come  to  trial. 
[Stats.  1877,  p.  195.] 

§  20. — If  the  suit  upon  which  such  property  was  attached  shall  be  decided  in 
favor  of  the  defendant,  the  money  accruing  from  the  sale  of  such  property  shall  be 
paid  to  him;  but  if  decided  in  favor  of  the  plaintiff,  said  money,  or  so  much  thereof 
as  will  satisfy  his  claim,  shall  be  paid  to  him;  and  if  the  property  attached  shall 
have  been  subject  to  more  than  one  attachment,  the  money  shall  be  paid  to  the 
several  attaching  creditors,  in  like  order  and  proportion  as  the  proceeds  would 
have  been  payable  in  case  of  sale  on  execution;  and  the  court  which  renders  final 
judgment  in  the  suit  may  make  the  necessary  orders  therefor. 

§21. — After  the  money  accruing  from  the  sale  of  the  property  attached  has 
been  paid  to  the  clerk  of  the  court  or  justice  of  the  i^eace,  any  creditor  may  attach 
it,  by  leaving  a  copy  of  his  attachment,  with  an  indorsement  of  the  service  thereon, 
with  such  clerk  or  justice  of  the  peace,  and  a  like  copy  with  the  defendant,  if 
within  this  state;  in  which  case,  the  sum  which  such  creditor  shall  recover  shall  be 
paid  to  him,  under  the  order  of  the  court,  out  of  the  surplus  which  shall  be  left, 
after  deducting  all  previous  attachments,  in  the  same  manner  as  if  he  had  attached 
said  jjroperty  before  the  sale. 

§  22. — The  defendant  may,  at  any  time  during  the  pendency  of  the  suit,  take 
to  his  own  use  the  money  raised  by  such  sale,  upon  giving  bond,  to  the  plaintiff, 
with  surety,  to  the  satisfaction  of  the  judge  or  commissioner  who  ordered  such 
sale,  or  of  the  justice  of  the  peace  or  court  before  which  the  action  shall  be  pend- 
ing, if  then  in  session,  to  refund  the  same  in  tlie  event  of  final  judgment  rendered 
against  him,  to  be  disposed  of  in  satisfaction  of  such  judgment  as  hereinbefore 
provided. 

§  2.3. — When  any  estate  shall  be  attached,  or  any  debt  or  effects  taken  by  proc- 
ess of  foreign  attachment,  the  defendant,  if  the  debt  or  damages  demanded  do 
not  exceed  three  hundred  dollars,  may  apply,  in  writing,  to  any  justice  of  the 
peace  in  the  county  where  such  attachment  is  made,  or,  if  such  debt  or  damages 
exceed  three  hundred  dollars,  to  a  judge  of  the  court  in  which  such  action  may  be 
pending,  to  dissolve  the  attachment  lien,  upon  the  substitution  of  a  bond  with 
surety. 

§  24. — The  application  may  be  in  the  following  form: 

To ;  a  justice  of  the  peace  for  the  county  of (or  judge,  as  the  case 

may  be) :    The  application  of  C.  D. ,  of ,  in  the  county  of  — — — ,  shows,  that 

he  is  defendant  in  a  certain  action  demanding dollars,  debt  (or  damages), 

wherein  A.  B.,  of  ,  is  plaintiff;  in  which  action,  the  following  estate  has 

been  attached,  to  wit:  by  E.  F.,  of  (insert  the  name  of  the  officer), 

and  that  he  is  desirous  that  said  attachment  should  be  dissolved  upon  the  substi- 
tution of  blind,  with  surety,  according  to  the  statute.     Dated  at ,  the ■ 

day  of  -.  C.  D. 

§  25. — No  attachment  shall  be  dissolved  imtil  reasonable  notice  of  the  applica- 
tion, in  writing,  signed  Ijy  the  defendant,  or  his  attorney,  .shall  have  been  served 
ui)nn  the  plaintiff,  or  his  attorney,  and  on  the  officer  serving  the  attachment;  and 
such  notice  may  be  in  the  following  form: 

A.  B.  1        To ,  of  ,  and ,  of  :    Action  of ,  return- 

vs.     Vable  to Court, term, 18 — . 

C.  D.  j      Take  iiotice,  that  the  defendant  will  apply  to ,  justice  of  the  peace 

of  the  county  of  (or  judge,  etd),  at  ,  on  the  •  day  of , 


458  CONNECTICUT. 

18—,  at  — 5*^^Vdock  in  the noon,  to  dissolve  the  attachment  in  this  cause, 

upon  tho  awbrtitution  of  bond,  with  surety,  according  to  the  statute.  Dated  at 
^,  the day  of  ,  18 — .  C.  D. 

§  2G.— All  persons  interested  may  be  heard  in  relation  to  the  amount  and  suffi- 
ciency of  the  bond  offered  by  the  defendant.  Such  amount  shaU  equal  the  value 
of  the  estate  which  the  process  directed  to  be  attached,  unless  the  action  be  founded 
in  tort  for  the  recovery  of  unliquidated  damages,  and  it  shall  appear  to  the  author- 
ity to  whom  the  application  is  made,  that  the  amount  so  required  to  be  attached  is 
excessive,  in  which  case  he  may  take  a  bond  for  such  simi  as  he  may  deem 
reasonable. 

§  27. — The  bond  shall  be  taken  to  the  plaintiff,  and  substantially  in  the  follow- 
ing form: 

Whereas,  the  estate  of  C.  D.,  of ,  has  been  attached  by  A.  B.,  of , 

by  process,  directing  an  attachment  to  the  value  of ,  dated ,  return- 
able to ,  as  appears  by  the  officer's  return  on  said  process:  You, ,  of 

,  and ,  of ,  acknowledge  yourselves  jointly  and  severally  bound 

unto  said  A.  B.,  in  the  sum  of •  doUars,  conditioned  that  if  said  C.  D.  shall 

pay  the  judgment  that  may  be  recovered  against  liim  in  such  suit,  or  if,  in  default 
of  such  pajonent,  you  pay  to  the  officer  having  the  execution  issued  on  such  judg- 
ment, on  demand,  the  actual  value  of  the  interest  of  said  C.  D.  in  said  attached 
property  at  the  time  of  said  attachment,  not  exceeding  the  amount  of  this  recog- 
nizance, then  this  recognizance  shaU  be  void. 

§  28.— The  authority  dissolving  the  attachment  shall  certify  his  doings  upon  the 
application,  and  forthwith  return  the  application,  recognizance,  and  other  proceed- 
ings, to  the  court  to  which  the  writ  is  returnable,  where  they  shall  be  kept  on  file. 

§  29.  — The  defendant,  if  the  attachment  dissolved  be  of  real  estate,  may  file  with 
the  clerk  of  the  town  where  it  lies,  a  certificate  of  such  dissolution,  signed  by  the 
authority  making  the  same;  if  the  attachment  be  of  shares  in  any  corporation,  he 
may  leave  a  like  certificate  with  the  officer  of  the  corporation  with  whom  a  copy 
of  the  attachment  was  left  in  service;  and  if  the  attachment  be  of  debts,  or  effects, 
in  the  hands  of  a  garnishee,  he  may  leave  a  like  certificate  -ft-ith  the  garnishee; 
and  no  such  corporation  shall  be  held  liable  to  the  defendant  for  refusing  to  trans- 
fer the  shares  attached,  or  to  pay  the  dividends  due  thereon,  and  no  such  garnishee 
shall  be  held  liable  to  the  defendant  for  refusing  to  pay  the  debt,  or  return  the 
effects  attached  in  his  hands,  imtil  such  certificate  shall  have  been  so  left. 

§  30. — The  court  before  which  any  action  maybe  pending,  in  which  such  a  bond 
has  been  given,  may,  on  application  of  either  party,  and  due  notice  to  the  other, 
order  that  a  new  bond  of  some  responsible  inhabitant  of  this  state  be  substituted 
in  lieu  and  discharge  of  the  oi'iginal  one;  and,  if  said  order  be  made  on  the  appli- 
cation of  the  plaintiff,  may  render  a  judgment  in  his  favor  by  default,  if  such  sub- 
stitution be  not  made  within  such  time  as  the  comi;  may  appoint. 

§  31.— In  every  action  for  the  recovery  of  any  debt,  which  shall  be  brought  to 
the  superior  court,  court  of  common  pleas,  or  district  court,  and  in  which  the  estate 
of  the  defendant  shall  have  been  attached,  said  court,  or,  in  vacation,  any  judge 
thereof,  shall,  on  application  of  the  defendant  or  his  attorney,  cite  the  plaintiff  or 
plaintiffs,  if  they  reside  in  the  county  in  which  such  action  is  pending,  or  their 
attornej'',  if  they,  or  either  of  them,  are  not  residents  of  said  county,  to  appear 
forthwith  before  said  court  or  judge,  then  and  there  to  state,  under  oath,  the 
amount  of  the  plaintiff's  claim,  and  that  he  or  they  verily  believe  the  same  is 
justly  due,  and,  if  required  by  said  court  or  judge,  to  furnish  a  bill  of  particulars 
of  said  claim;  and  if  said  court  or  judge  shall  find  that  the  value  of  the  ijroperty 
attached  so  far  exceeds  the  amount  of  said  claim  as  to  render  the  attachment  op- 
pressive and  vexatious,  said  court  or  judge  shall  order  the  release  of  such  portion 
of  the  ijroperty  attached  as  is  not  required  to  secure  the  pajinent  of  the  claim  and 
costs,  and  the  plaintiff  shall  pay  the  costs  of  such  citation  and  hearing  thereon; 
but  if  said  attachment  shall  not  be  released,  in  whole  or  in  part,  the  defendant 
shall  pay  said  costs  to  the  plaintiff  or  pilaiatiflfs. 

§  32. — If  the  plaintiff  or  plaintiffs  shall  not  appear  before  said  court  or  judge, 
vrhen  cited  as  aforesaid,  and  said  court  or  judge  shall  be  satisfied  that  they  do  not 
intend  to  appear,  said  attachment  shall  be  dissolved. 

§  33. — When  the  estate  of  any  person  shall  have  been  attached  in  any  proceed- 
ing wherein  a  certificate  of  such  attachment  or  a  copy  of  the  vn-it  or  proceeding  is 
required  by  law  to  be  filed  in  the  office  of  the  town  clerk,  and  the  plaintiff  therein 
shall  withdraw  his  suit,  or  be  nonsuited,  or  final  judgment  shall  have  been  ren- 


CONNECTICUT.  459 

dered  against  him,  the  clerk  of  the  court  where  said  suit  was  pending-  shall,  at  the 
request  of  any  person  interested  in  the  estate  attached,  or  in  having  the  lien  re- 
moved, issue  a  certificate  that  said  lien  is  removed,  and  such  town  clerk  shall 
thereupon  note  the  release  of  such  attachment  of  rfeal  estate,  on  the  page  of  record 
where  the  certificate  of  the  attachment  was  recorded.  And  whenever  the  process 
in  such  case  shall  not  have  been  retiirned  at  the  time  and  to  the  court  therein  men- 
tioned, said  clerk  shall,  upon  the  application  of  any  person  interested  in  said 
estate,  issue  a  certificate  to  that  effect,  which  certificate  shall  be  recorded  by  said 
town  clerk.     [.i\jnended  Stats.  1884,  p.  325.] 

§  34.  — If  any  person  so  requested  in  writing  shall  wiUf uUy  neglect  or  refuse  to 
lodge  such  certificate  with  the  to^vn  clerk  within  thirty  days  thereafter,  and  after 
sufficient  proof  of  such  satisfaction  shall  have  been  furnished  to  him,  and  the  nec- 
essary expense  of  filing  such  a  certificate  tendered  to  him,  he  shall  pay  to  the  person, 
aggrieved  ten  doUars  for  each  week  of  such  refusal  or  neglect. 

§  35. — Any  property  sold  upon  condition,  and  put  by  the  vendor  into  the  visible 
possession  of  the  vendee,  unless  otherwise  exempt  from  execution,  may  be  attached 
and  levied  upon  and  sold  or  set  out  on  execution  in  any  suit  against  such  vendee, 
subject  to  the  rights  of  the  vendor  to  its  possession  or  ownership;  and  the  party 
attaching  or  levying  shall  have  the  same  rights,  which  the  vendee  would  otherwise 
have  had,  to  tender  to  the  vendor  performance  of  the  conditions  of  sale;  and  aU 
parties  deriving  title  under  the  execution  shall  succeed  to  all  the  rights  of  the 
vendee,  in  relation  to  such  property. 

§  30. — Such  attaching  or  levying  creditor  may  summon  said  vendor  to  appear 
before  the  judge  of  the  court  or  justice  of  the  peace,  before  whom  the  suit  shall  be 
or  may  have  been  jjending,  to  disclose  fully  on  oath  what  claim  he  has  on  said 
property,  which  summons  shall  be  signed  by  such  judge  or  justice,  be  returnable, 
at  such  time  and  place  as  he  may  appoint,  and  be  served  as  other  civU  process,  at 
least  six  days  before  such  time.  If  such  vendor  shall  be  absent  from  the  state 
when  such  summons  shall  be  served,  such  judge  or  justice  shall  make  a  reasonable 
order  of  notice  to  him:  and  if  such  summons  shall  have  been  duly  served,  and  such 
order,  if  any,  duly  complied  with,  and  such  vendor  shall  fail  to  disclose  as  afore- 
said, such  neglect  shall  be  prima  facie  evidence  that  he  has  no  interest  in  said 
property. 

§  37. — In  suits  by  foreign  attachment,  the  plaintiff  shall  be  entitled  to  all  the 
security  which  his  debtor  had  for  the  debt  or  property  attached. 

§  38. — Assignments  of  future  earnings  shall  not  be  valid  against  attaching  cred- 
itors unless  to  secm-e  a  bona  fide  debt  due  at  the  date  of  the  assignment,  and  in 
such  assignment  the  amount  and  term  for  which  assigned  must  be  stated,  and  it 
must  be  recorded.     [Stats.  1878,  p.  263.] 

§  39. — AVhen  any  debt  due,  or  to  become  due,  to  any  person  from  an  estate  of 
a  deceased  person,  in  settlement  as  a  solvent  estate,  shall  be  attached,  the  attach- 
ing creditor  may,  within  the  time  limited  for  presenting  claims  against  such  estate, 
present  the  debt  so  by  him  attached,  to  the  executor  or  administrator,  which  shall 
be  a  sufficient  presentment  thereof.  And  when  any  debt  due,  or  to  become  due, 
to  any  person,  from  an  estate  of  a  deceased  person  represented  insolvent,  or  from 
the  estate  of  an  insolvent  debtor,  shall  be  attached,  the  attaching  creditor  may, 
within  the  time  limited  for  the  presentment  of  claims  against  such  estate,  present 
the  debt,  so  liy  him  attached,  to  the  commissioners  on  such  estate,  and  may  appear 
and  be  heard  in  relation  thereto,  and  shall  have  the  same  right  of  re\'iew  or  appeal 
as  the  defendant;  but  such  presentment  and  proof  of  any  debt,  by  an  attaching 
creditor,  shall  inure  to  his  benefit  alone,  and  shall  not  prevent  such  debt  from  being 
barred  as  against  the  original  owner  thereof,  if  not  presented  by  him. 

§  40. — "When  a  debt,  evidenced  by  a  negotiable  promissory  note,  shall  have  been 
attached  by  process  of  foreign  attachment,  and  the  defendant  shall  have  had  actual 
notice  thereof,  he  shall  not  negotiate  or  transfer  such  note  dm-ing  the  continuance 
of  the  attachment  lien;  and,  if  he  do  so,  shall  be  deemed  guilty  of  fraud  upon  the 
attaching  creditor,  who,  if  he  shall  recover  judgment  in  his  original  suit,  may, 
within  one  year  after  its  rendition,  institute  an  action  on  the  case  against  the  de- 
fendant for  such  fraud;  but  the  title  of  any  bona  fide  purchaser  of  such  note  for 
valuable  consideration,  without  notice,  and  before  maturity,  shall  not  be  affected 
by  this  section. 

§  41. — When  any  debtor  or  person,  having  in  his  hands  the  effects  of  another, 
shall  refuse  to  pay  such  debt,  or  deliver  such  effects,  on  the  ground  that  he  is  the 
garnishee  in  a  process  of  foreign  attachment  levied  thereon,  the  person,  to  whom 
Buch  refusal  of  payment  or  delivery  has  been  made,  may  institute  his  bUl  in  equity^ 


460  CONNECTICUT. 

in  the  natiire  of  a  bill  of  interpleader  against  such  debtor,  the  other  parties  in  said 
process  of  foreign  attachment,  and  any  other  parties  in  interest.  The  court  before 
which  such  bill  shall  be  brought  shall  have  power  to  decide  to  whom  such  debt  is 
due,  or  such  effects  belong,  what  disposition  shall  be  made  of  the  same,  and  all 
other  matters  connected  with  said  proceeding  that  may  be  proper  to  do  justice 
between  the  parties;  and  may  make  all  proper  orders  relating  to  the  payment  into 
court,  or  the  safe-keeping  of  the  fund,  or  other  matter  in  controversy,  and  its  pay- 
ment or  delivery  to  any  of  the  claimants,  upon  the  substitution  of  satisfactory 
bonds,  and  upon  such  other  terms  as  the  coiu-t  shall  order;  and  may,  from  time  to 
time,  require  additional  security  for  such  fund. 

§  42. — The  petitioner,  at  any  time  after  the  service  of  such  bUl,  and  before  the 
session  of  the  com-t  to  which  it  is  returnable,  may  apply  to  any  judge  of  such 
court  for  an  order  requiring  the  payment  or  delivery,  by  such  garnishee,  of  such 
debt  or  effects,  upon  the  substitution  of  a  satisfactory  bond  therefor;  and  such  judge 
shall  have  the  same  power  in  the  premises  as  the  court  to  which  such  biU  is  brought. 
The  costs  of  such  application  shall  be  subject  to  the  order  of  such  court. 

§  43. — Service  of  a  process  of  foreign  attachment  on  the  garnishee  shall  be 
sufficient  notice  to  the  defendant,  if  he  be  not  an  inhabitant  of  this  state,  to  enable 
the  plaintiff  to  bring  the  action  to  trial 

INTEEVENTION  BY  CEEDIT0R3. 

§  17. — In  any  action  where  property  has  been  attached,  any  person  may  appear 
and  defend  in  the  name  of  the  defendant,  upon  filing  in  the  court  an  affidavit  that 
he  is  a  creditor  of  the  defendant,  and  has  good  reason  to  believe,  and  does  believe, 
that  the  amount,  which  plaintiff  claims,  was  not  justly  due  at  the  commencement 
of  the  suit,  and  that  he  is  in  danger  of  being  defrauded  by  a  recovery  bj'  the  plaint- 
iff, and  upon  giving  bond,  with  surety,  to  the  plaintiff,  in  such  amount  as  the  court 
shall  approve,  for  the  pajrment  of  such  costs  as  the  plaintiff  may  thereafter  recover; 
and  if  the  plaintiff  shall  recover  his  whole  claim,  costs  shall  be  taxed  against  the 
defendant  to  the  time  of  the  appearance  of  such  creditor;  and  for  the  residue  of  the 
costs,  such  creditor  shall  be  liable  upon  his  bond:  if  only  a  part  of  the  plaintiff's 
claim  shall  be  recovered,  the  whole  costs  shall  be  taxed  against  the  defendant,  and 
the  creditor  shall  not  be  liable  for  the  same;  if  judgment  shall  be  rendered  in  favor 
of  the  defendant,  costs  shall  be  taxed  in  his  favor  against  the  plaintiff,  but  the  court 
may  order  that  the  judgment  and  execution  therefor  shall  belong  to  such  creditor. 
Ko  creditor  so  appearing  shall  be  permitted  to  plead  in  abatement,  nor  to  plead 
or  give  in  evidence  the  statute  of  limitations,  nor  that  the  contract  was  not  in 
writing,  according  to  the  requirements  of  the  statute,  nor  any  other  statutory 
defense  consistent  with  the  justice  of  the  plaintiff's  claim. 

FOREIGN  ATTACHMENT. 

§  19. — In  all  suits  by  foreign  attachment,  if  the  defendant  does  not  appear,  any 
garnishee  may  be  admitted  to  defend  his  principal;  but  if  the  defendant  is  not  in 
this  state,  and  does  not  appear,  by  himself  or  attorney,  and  the  garnishee  does  not 
ajjpear  to  defend,  the  court  shall  continue  the  action  to  the  next  term,  and  may 
order  notice  of  the  suit  to  be  given  by  publication  in  some  newspaper,  or  otherwise, 
as  it  may  thinlc  j^roper;  and  if  the  defendant  should  not  then  appear,  the  court 
may,  if  it  judge  proper,  order  the  action  to  be  continued  once  more,  to  give  an 
opportunity  to  notify  the  defendant  of  the  pendency  of  the  suit;  and  then,  unless 
some  sj^ecial  matter  be  alleged  for  further  delay,  the  cause  shall  come  to  trial;  but 
when  the  action  is  brought  before  a  justice  of  the  peace,  in  case  the  defendant  shall 
not  be  in  this  state,  and  no  attorney  or  garnishee  appears  to  defend,  such  justice  of 
the  peace  shall  adjourn  the  cause  for  not  less  than  three  nor  more  than  nine  months; 
and  then,  unless  sjjecial  reasons  be  given  for  a  f mrther  delay,  such  action  shall  come 
to  trial.     [Amended  Stats.  1877,  p.  195,  §  2.] 

§  6. — Where  in  any  suit  by  foreign  attachment,  any  garnishee,  ha\'ing  been 
cited  in  to  disclose  either  upon  the  original  process,  or  by  a  citation  issued  pending 
the  suit,  shall  appear,  the  court  may  examiiae  him  upon  oath  as  to  whether,  at  the 
time  of  the  service  of  the  foreign  attachment,  he  had  effects  of  the  defendant  in 
his  hands,  or  was  indebted  to  him,  and  may  hear  any  other  proper  evidence  respect- 
ing the  same;  and  if  it  appear  that  such  garnishee  had  not  effects  of  the  defendant 
in  his  possession,  or  was  not  indebted  to  him,  he  shall  recover  judgment  for  his 
costs;  but  if  it  apjiear  that  such  garnishee  had  in  his  possession  effects  of  the  de- 
fendant, or  was  indebted  to  him,  the  court  shall  ascertain  the  amount,  and  the 
same  shall,  if  the  plaintiff  recovers  judgment  and  brings  a  sch-e  facias  against  the 
garnishee,  he  prima  facie  evidence  oi  the  facts  so  found;  but  the  defendant  shall 
then  have  a  right  again  to  disclose  on  oath,  and  the  parties  may  introduce  any 


DAKOTA.  461 

other  proper  testimony  regarding  such  facts.  But  if  the  plaintiff,  in  such  action  of 
foreign  attachment,  withdraws  his  suit,  or  fails  to  recover  judgment  ayainst  the 
defendant,  such  garnishee  shall  be  entitled  to  judgment  for  his  costs. 

§  7. — If  any  garnishee,  cited  in  to  disclose  before  a  court  hold  in  a  town  other 
than  in  which  he  resides,  was  not  indebted  to,  and  had  no  effects  of  the  defendant 
in  his  possession,  when  the  writ  was  served  upon  him,  it  shall  be  a  sufficient  excuse 
for  his  not  appearing  before  said  com-t,  if  he  file  therein,  on  the  return  day  of  the 
writ,  his  affidavit  stating  such  facts;  but  if  any  garnishee,  when  duly  cited  in  to 
disclose,  shall  fail  to  appear  without  reasonable  excuse,  or  shall  refuse  to  disclose  on 
oath,  whether  he  has  any  effects  of  the  defendant  in  his  possession,  or  is  indebted 
to  him,  then  if  the  plaintiff  shall  bring  a  sc!>e/ac/as  against  him,  on  a  judgment 
recovered  against  the  defendant  in  the  suit,  judgment  shall  be  rendered  against 
such  garnishee  personally,  for  the  costs  accrued  on  the  scire  facias,  though  it  shall 
appear  that  he  had  no  effects  of  the  debtor  in  his  possession,  and  was  not  indebted 
to  him. 


Costs  at  discretion  of  the  court — Title  xix,  chap.  15,  §  13,  p.  446.  Fees— Id., 
§  16,  p.  447. 

Exemptions— Title  xix,  chap.  16,  §§  10,  11;  Poultry,  Stats.  1879,  p.  377. 
Minors'  wages.  Stats.  1883,  p.  234. 

Execution— Title  xix,  chap  16,  §§  39-54,  pp.  462-464,  and  Stats.  1882,  p.  135. 

Partnership  property,  attachment  of — Title  xix,  chap.  17,  part  14,  §§  3-6,  p.  483. 

Scire  facias  against  garnishee  must  be  brought  within  one  year  after  the  right 
of  bringing  it  shall  accrue — Title  xix,  chap.  18,  §  8,  p.  494. 

Trustee  paying  by  order  of  court — Stats.  1875,  p.  17. 

Garnishee  may  answer — Stats.  1877,  p.  158. 

(Garnishment  of  corporations — Stats.  1881,  p.  91. 

Service  on  corporations — Stats.  1877,  p.  160. 

Replevin  of  attached  property — Stats.  1878,  p.  310, 

Costs,  maximum^Stats.  1882,  p.  131. 

Garnishee's  fees — Stats.  1882,  p.  198. 


DAKOTA. 

[Levisee's  Code  of  Civil  Procedure,  1883.] 


ARTICLE   IV. — ATTACHMENT. 

§  197. — In  an  action  arising  on  contract  for  the  recovery  of  money  only;  or  in 
action  for  the  wrongful  conversion  of  personal  property,  against  a  corporation  cre- 
ated by  or  under  the  laws  of  any  other  territory,  state,  government  or  country; 
or  against  a  defendant  who  is  not  a  resident  of  this  territory;  or  against  a  defend- 
ant who  has  absconded  or  concealed  himself;  or  whenever  any  person  or  corpora- 
tion is  about  to  remove  any  of  his  or  its  property  from  this  territory;  or  has  as- 
signed, disposed  of,  secreted,  or  is  about  to  assign,  dispose  of  or  secrete,  any  of  his 
or  its  property,  with  intent  to  defraud  creditors,  as  hereinafter  mentioned, — the 
plaintiff  at  the  time  of  issuing  the  summons,  or  at  any  time  afterward,  vaay  have 
the  property  of  such  defendant  or  corporation  attached,  in  the  manner  hereinafter 
described,  as  a  security  for  the  satisfaction  of  such  judgment  as  the  plaintiff  may 
recover;  and  for  the  purposes  of  this  section  an  action  shall  be  deemed  commenced 
when  the  summons  is  issued:  Provided,  however,  that  personal  service  of  such  sum- 
mons shall  be  made,  or  publication  thereof  commenced,  within  thirty  days.  Pro- 
vided, further,  that  whenever  any  debtor  residing  in  this  territory  is  about  to  remove 
from  the  county  where  he  resides,  with  the  intention  of  permanently  changing  his  or 
her  place  of  residence,  it  shall  be  lawful  for  his  or  her  creditors  to  demand  of  such 
debtor  security  for  such  debt;  and,  in  case  of  failure  or  neglect  to  secure  the  same, 
such  creditor  shall  have  the  right  of  attachment  against  the  jiroperty  of  such  de- 
linquent debtor  under  the  provisions  of  law  regulating  attachment  proceedings. 
XAa  amended  March  2,  1883.] 


462  DAKOTA. 

§  108.— A  warrant  of  attachment  must  be  obtained  from  the  clerk  of  the  coTirfc 
in  which  the  action  is  brought;  and  such  warrant  of  attachment  must  be  attested 
in  the  name  of  the  presiding  judge,  and  must  be  sealed  with  the  seal  of  the  court. 

§  199. — The  warrant  may  issue  upon  affidavit,  stating: 

1.  That  a  cause  of  action  exists  against  such  defendant,  specifying  the  amoimt 
of  the  claim  and  the  grounds  thereof;  and 

2.  That  the  defendant  is  either  a  foreign  corporation  or  not  a  resident  of  this 
territory,  or  has  departed  therefrom  with  intent  to  defraud  his  creditors,  or  to 
avoid  the  service  of  a  summons,  or  keeps  himself  concealed  therein  with  the  like 
intent,  or  that  the  debt  was  incurred  from  property  obtained  under  false  pretenses; 
or  [as  amended  February  25,  1881]; 

3.  That  such  corporation  or  person  has  removed,  or  is  about  to  remove,  any  of 
his  or  its  property,  from  the  territory  with  intent  to  defraud  his  or  its  creditors;  or, 

4.  Has  assigned,  disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  of,  or 
secrete,  any  of  his  or  its  property  with  the  like  intent,  whether  such  defendant  be 
a  resident  of  this  territory  or  not. 

§  200. — Before  issuing  the  warrant  the  clerk  must  require  a  written  undertaking 
on  the  part  of  the  plaintiff,  with  sufficient  surety,  to  the  effect  that  if  the  defend- 
ant recover  judgment,  or  the  attachment  be  set  aside  by  order  of  the  court,  the 
plaintiff  vvill  pay  all  costs  that  may  be  awarded  to  the  defendant,  and  aU  damages 
which  he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the  sum  named 
in  the  undertaking,  which  must  be  at  least  the  amount  of  the  claim  specified  ia 
the  affidavit,  and  in  no  case  less  than  two  hundred  and  fifty  dollars. 

§  201.  The  warrant  must  be  directed  to  the  sheriff  of  any  county  in  which  prop- 
erty of  such  defendant  may  be,  and  must  require  him  to  attach  and  safely  keep  all 
the  proi:)erty  of  such  defendant  within  his  county,  not  exempt  from  execution,  or 
so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount 
of  which  must  be  stated  in  conformity  with  the  complaint,  unless  the  defendant 
give  him  security  by  the  imdertaking  of  at  least  two  sufficient  sureties,  in  an 
amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in  an  amount  equal  to 
the  value  of  the  property  which  has  been  or  is  about  to  be  attached;  in  which  case, 
to  take  such  undertaking.  Several  writs  may  be  issued  at  the  same  time  to  the 
sheriffs  of  different  counties. 

•  §  202. — The  sheriff  to  whom  such  warrant  of  attachment  is  directed  and  deliv- 
ered, must  immediately  attach  all  the  real  property  of  such  debtor  and  all  his  per- 
sonal estate,  or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand, 
costs  and  exi)enses,  and  including  debts,  credits,  money,  and  bank-notes,  except 
property  exempt  from  execution;  and  must  take  into  his  custody  all  books  of 
accounts,  vouchers,  evidences  of  indebtedness,  and  all  papers  relating  to  the  prop- 
erty, debts,  credits,  and  effects  of  such  debtor,  together  with  all  evidences  of  lua 
title  to  real  property. 

§  203. — Immediately  upon  making  such  seizure  he  shall  make  a  just  and  true 
inventory  of  all  the  property  so  seized,  and  of  the  books,  vouchers  and  papers  taken 
into  his  custody,  stating  therein  the  estimated  value  of  the  several  articles  and 
kinds  of  personal  property,  enumerating  such  of  them  as  are  perishable,  and  giving 
a  description  of  the  real  property  so  attached,  which  inventory  must  be  signed  by 
the  sheriff,  attached  to  and  made  a  part  of  the  return  on  the  warrant  of  attach- 
ment. And  any  subsequent  execution  of  the  warrant  of  attachment  upon  other 
property  of  the  debtor  must  be  made,  and  an  inventory  thereof  made  and  returned 
in  like  manner. 

§  204. — The  sheriff  must  keep  the  property  seized  by  him,  or  the  proceeds  of 
such  as  shall  have  been  sold,  to  answer  any  judgment  which  may  be  obtained 
in  such  action,  and  must,  subject  to  the  direction  of  the  court  or  judge, 
collect  and  receive  into  his  possession  all  debts,  credits,  and  effects  of  the  debtor. 
The  sheriff'  may  also  take  such  legal  proceedings,  either  in  his  own  name  or  the 
name  of  such  debtor,  as  may  be  necessary  for  that  purpose,  and  discontinue  the 
same  at  such  times  and  on  such  terms  as  the  court  or  judge  may  direct. 

§  205. — If  any  of  the  property  so  seized  shall  be  perishable,  the  sheriff  must 
sell  the  same  at  public  auction,  under  an  order  of  the  court,  or  a  judge  thereof, 
and  must  retain  in  his  hands  the  proceeds  of  such  sale,  after  deducting  his  ex- 
penses, which  proceeds  must  be  paid  into  court  and  there  abide  its  fm-ther  order. 

§206. — If  any  property  so  seized  be  claimed  by  or  on  behalf  of  any  person 
other  than  such  defendant,  the  sheriff  may  summon  a  jury  and  try  the  vaUdity 
of  such  claim  in  the  same  maimer  with  like  effect  as  in  case  of  seizure  vmder  exe- 
cution. 


DAKOTA.  463 

§  207. — The  rights  or  shares  which  such  defendant  may  have  in  the  stock  of  any 
association  or  coriioration,  together  with  the  interests  and  profits  thereon,  and  all 
other  projierty  in  this  territory  of  such  defendant,  shall  be  liable  to  be  attached 
and  levied  upon,  and  sold  to  satisfy  the  judgment  and  execution. 

§  208. — The  execution  of  the  attachment  upon  any  such  rights,  shares,  or  any 
debts,  or  other  property,  incapable  of  manual  delivery  to  the  sheriff,  must  be  made 
by  leaving  a  certified  copy  of  the  warrant  of  attachment  with  the  president  or 
other  head  of  the  association  or  corporation,  or  the  secretary,  cashier,  or  managing 
agent  thereof,  or  with  the  debtor  or  individual  holding  or  occupying  such  property, 
with  a  notice  showing  the  property  levied  on;  or,  if  the  property  attached  be  un- 
occupied real  property,  by  putting  a  certified  copy  of  such  warrant  upon  the  outer 
door  of  the  court-house  or  other  building  in  which  the  district  court  shall  be  held, 
within  the  county  or  judicial  subdivision  in  which  such  unoccupied  real  property 
shall  be  situated. 

§  209. — Whenever  the  sheriff  shall,  with  a  warrant  of  attachment  or  execution 
against  the  defendant,  apply  to  such  officer,  debtor,  or  individual  for  the  purpose 
of  attaching  or  levying  upon  such  property,  such  officer,  debtor  or  individual  shall 
furnish  him  with  a  certificate,  under  his  hand,  designating  the  number  of  rights 
or  shares  of  the  defendant  in  the  stock  of  such  association  or  corporation,  with  any 
dividend  or  any  incumbrance  thereon,  or  the  amount  and  description  of  the  prop- 
erty held  by  such  association,  corporation,  or  individual  for  the  benefit  of  or  debt 
owing  to  the  defendant.  If  such  officer,  debtor,  or  indi^ddual  refuse  to  do  so,  or 
if  it  be  made  to  appear  by  affidavit  or  otherwise,  to  the  satisfaction  of  the  court  or 
judge  thereof,  that  there  is  reason  to  suspect  that  any  certificate  given  him  is  un- 
true, or  that  it  fails  to  fully  set  forth  the  facts  required  to  be  shown  thereby,  he 
may  be  required  by  the  court  or  judge  to  attend  before  him,  and  be  examined 
on  oath  concerning  the  same,  and  obedience  to  such  order  may  be  enforced  by 
attachment. 

§  210. — In  case  judgment  be  entered  for  the  plaintiff  in  such  action,  the  sheriff 
shall  satisfy  the  same  out  of  the  property  attached  by  him,  if  it  shall  be  sufficient 
for  that  purpose: 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all  sales  of  perishable  prop- 
erty, and  of  any  vessel,  or  share  or  interest  in  any  vessel,  sold  by  him,  or  of  any 
debts  or  credits  collected  by  him,  or  so  much  as  shall  be  necessary  to  satisfy  such 
judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  such 
judgment,  he  shall  proceed  to  sell,  under  such  execution,  so  much  of  the  attached 
property,  real  or  personal,  except  as  provided  in  subdivision  four  of  this  section, 
as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose  shall  remain 
in  his  hands;  and  in  case  of  the  sale  of  any  rights  or  shares  in  the  stock  of  a  cor- 
poration or  association,  the  sheriff  shall  execute  to  the  piirchaser  a  certificate  of 
sale  thereof,  and  the  purchaser  shall  thereupon  have  all  the  rights  and  privileges 
in  respect  thereto  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant  shall  have  passed 
out  of  the  hands  of  the  sheriff  without  having  been  sold  or  converted  into  money, 
such  sheriff  shaU  repossess  himself  of  the  same,  and  for  that  pm-pose  shall  have  all 
the  authority  which  he  had  to  seize  the  same  undet  the  attachment;  and  any  j)er- 
son  who  shall  ■willfully  conceal  or  mthhold  such  property  from  the  sheriff  shall  be 
liable  to  double  damages,  at  the  suit  of  the  party  injured. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the  sheriff  may 
proceed  to  collect  the  notes  and  other  e\idences  of  debts  that  may  have  been 
seized  or  attached  under  the  warrant  of  attachment,  and  to  prosecute  any  bond  he 
may  have  taken  in  the  course  of  such  proceedings,  and  apply  the  proceeds  thereof 
to  the  payment  of  the  judgment.  At  the  expiration  of  six  months  from  the  dock- 
eting of  the  judgment,  the  court  shall  have  power,  upon  the  petition  of  the  plaint- 
iff, accompanied  by  an  affidavit  setting  forth  fully  all  the  proceedings  which  have 
been  had  by  the  sheriff  since  the  service  of  the  attachment,  the  property  attached, 
and  the  disposition  thereof,  and  also  the  affidavit  of  the  sheriff  that  he  has  used 
diligence  and  endeavored  to  collect  evidences  of  debts  in  his  hands  so  attached,  and 
that  there  remains  uncollected  of  the  same  any  part  or  portion  thereof,  to  order 
the  sheriff  to  sell  the  same,  upon  such  terms  and  in  such  manner  as  shall  be  deemed 
proper.  Notice  of  such  application  shall  be  given  to  the  defendant,  or  his  attor- 
ney, if  the  defendant  shall  have  appeared  in  the  action.  In  case  the  summons  has 
not  been  personally  served  on  the  defendant,  the  court  shall  make  such  rule  or 
order,  as  to  the  service  of  the  notice  and  the  time  of  service,  as  shall  be  deemed 
just.  \Vhen  the  judgment  and  all  costs  of  the  proceedings  shall  have  been  paid, 
the  sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the  defendant  the  residue 
of  the  attached  property,  or  the  proceeds  thereof. 


464  DAKOTA. 

§  211.  The  actions  herein  authorized  to  be  brought  by  the  sheriff  may  be  prose- 
cuted by  the  plaintiff,  or  under  bis  direction,  upon  the  delivery  by  him  to  the 
sheriff  of  an  undertaking,  executed  by  two  sufficient  sureties,  to  the  effect  that 
the  plaintiff  will  indemnify  the  sheriff  from  all  damages,  costs  and  expenses  on 
account  thereof,  not  exceeding  two  hundred  and  fifty  dollars  in  any  one  action. 
Such  sureties  shall,  in  all  cases,  when  required  by  the  sheriff,  justify  by  making  an 
affidavit  that  each  is  a  householder,  and  worth  double  the  amount  of  the  penalty 
of  the  bond,  over  and  above  all  demands  and  liabilities,  and  exclusive  of  property 
exempt  from  execution. 

§  212. — If  the  foreign  corporation,  or  absent  or  absconding  or  concealed  defend- 
ant, recover  judgment  against  the  plaintiff  in  such  action,  any  bond  taken  by  the 
Bheriff,  except  such  as  are  mentioned  in  the  last  section,  all  the  j^roceeds  of  sales 
and  moneys  collected  by  him,  and  all  the  property  attached  remaining  in  his 
hands,  shall  be  delivered  by  him  to  the  defendant,  or  his  agent,  on  request,  and 
the  warrant  shall  be  discharged,  and  the  property  released  therefrom. 

§  213. — Whenever  the  defendant  shall  have  appeared  in  such  action,  he  may 
apply  to  the  clerk  who  issued  the  attachment,  or  to  the  court,  for  the  discharge  of 
the  same;  and,  upon  the  discharge,  all  the  proceeds  of  the  sales  and  moneys  col- 
lected by  him,  and  all  property  attached  remaining  in  his  hands,  must  be  delivered 
or  jiaid  by  him  to  the  defendant,  or  his  agent,  and  released  from  the  attachment. 
And  when  there  is  more  than  one  defendant,  and  several  property  of  either  of  the 
defendants  has  been  seized  by  viitue  of  the  warrant  of  attachment,  the  defendant 
whose  several  property  has  been  seized  may  apply  to  the  clerk  who  issued  the  war- 
rant, or  to  the  court,  for  the  discharge  of  the  attachment. 

§  214. — Upon  such  application  the  defendant  must  deliver  to  the  court  or  clerk 
an  undertaking,  executed  by  at  least  two  sureties,  who  are  residents  and  freehold- 
ers, or  householders,  in  this  territory,  approved  by  such  court  or  clerk,  to  the  effect 
that  such  sureties  will,  on  demand,  pay  to  the  plaintiff  the  amount  of  judgment 
that  may  be  recovered  against  the  defendant  in  the  action,  not  exceeding  the  sum 
specified  in  the  undertaking,  which  must  be  at  least  double  the  amount  claimed  by 
the  plaintiff  in  his  complaint.  If  it  appear  by  affidavit  that  the  property  attached 
is  worth  less  than  the  amount  claimed  by  the  plaintiff,  the  court,  or  the  clerk  issu- 
ing the  attachment,  may  order  the  same  to  be  appraised,  and  the  amount  of  the 
undertaking  shall  then  be  double  the  amount  so  appraised.  And  the  plaintiff  may, 
within  three  daj's  after  receiving  written  notice  of  the  filing  of  such  undertaking, 
give  notice  to  the  sheriff  that  he  excepts  to  the  sufficiency  of  the  sureties.  If  he 
fail  so  to  do  he  shall  be  deemed  to  have  waived  all  objection  to  them.  When  the 
plaintiff  excepts,  the  sureties  must  justify,  on  notice,  in  like  manner  as  upon  bail 
on  arrest.  And  the  sheriff  shall  be  responsible  for  the  sufficiency  of  the  sureties, 
and  may  retain  possession  of  the  property  attached,  and  the  proceeds  thereof  in  his 
hands,  until  the  objection  to  them  be  either  waived,  as  above  provided,  or  until 
they  justify,  or  new  sureties  are  substituted  and  justify. 

§  215. — In  all  cases  the  defendant,  or  any  person  who  has  acquired  a  lien  upon 
or  interest  in  the  defendant's  property  after  it  was  attached,  may  move  to  discharge 
the  attachment,  if  the  motion  be  made  upon  affidavits  on  the  part  of  the  defend- 
ant, or  person  who  has  acquired  a  lien  upon  or  interest  in  the  defendant's  property 
after  it  was  attached,  but  not  otherwise.  The  plaintiff  may  oppose  the  same  by 
affidavit  or  other  proof,  in  addition  to  the  affidavit  on  which  the  attachment  was 
granted,  and  in  such  case  the  defendant,  or  person  who  has  acquired  a  lien  upon  or 
interest  in  the  defendant's  property  after  it  was  attached,  may  sustain  the  motion 
by  affidavits  or  other  proof  in  rebuttal  of  the  affidavits  or  other  proof  offered  and 
submitted  on  the  part  of  the  plaintiff  to  oppose  the  motion.  And  when  there  is 
more  than  one  defendant,  and  several  property  of  either  of  the  defendants  has  been 
seized  by  virtue  of  the  warrant  of  attachment,  such  defendant  may  deliver  to  the 
court  or  clerk  an  undertaking,  in  accordance  with  the  provisions  of  the  preceding 
section,  to  the  effect  that  he  wUl,  on  demand,  pay  to  the  plaintiff  the  amount  of 
judgment  that  may  by  him  be  recovered  against  such  defendant;  and  all  the  pro- 
visions of  the  preceding  section  relating  to  such  undertaking  apply  thereto.  [As 
amended  February  25,  1881.] 

§  216. — If  a  warrant  of  attachment  be  levied  upon  the  interest  of  one  or  more 
partners  in  personal  property  of  a  partnership,  the  other  partners,  or  any  of  them, 
may,  at  any  time  before  judgment,  apply  to  the  court  from  which  the  warrant  of 
attachment  issued,  or  a  judge  thereof,  upon  affidavit  stating  such  fact,  for  an  order 
to  discharge  the  attachment  as  to  the  partnership  property.  The  applicant  must  give 
an  undertaking,  with  at  least  two  sufficient  sureties,  to  the  effect  that,  if  judgment 
shall  be  rendered  in  the  action  in  favor  of  the  plaintiff,  they  will  pay  to  the  sheriff, 
on  demand,  the  amount  of  defendant's  interest  in  such  partnership  property; 


DELAWARE.  465 

the  amount  of  such  interest  to  be  determined  by  reference  or  otherwise,  as  the  court 
may  direct.  The  amount  of  such  undertaking  must  be  fixed  by  the  court  or  iutlge 
thereof,  and  must  not  be  less  than  the  vahio  of  the  interest  of  the  defendant  i'n  the 
goods,  chattels,  credits  and  effects  of  the  partnership;  and  for  the  purpose  of  fixing 
the  amount  of  the  undertaking,  the  court  or  judge  may  hear  affidavits  or  oral  testi- 
mony, respecting  the  value  of  the  defendant's  interest  in  the  attached  property. 
If  the  plaintiff  except  to  the  sufficiency  of  the  sureties,  they  must  justify,  on  notice, 
in  like  manner  as  provided  by  section  two  hundred  and  fourteen. 

§  217.— When  the  warrant  shall  be  fully  executed  or  discharged,  the  sheriff 
must  return  the  same,  with  his  proceedings  thereon,  to  the  court  in  which  the  action 
was  brought. 

§  218.— 1.  When  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his  prop- 
erty with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to  hinder  or 
delay  them  in  the  collection  of  their  debts;  or  when  the  debt  was  incurred  for 
property  obtained  under  false  pretenses;  or,  [as  amended  February  25,  1881], 

2.  Is  about  to  make  sale,  conveyance,  or  disposition  of  his  property  with  such 
fraudulent  intent;  or, 

3.  Is  about  to  remove  hia  property,  or  a  material  part  thereof,  with  the  intent, 
or  to  the  effect,  of  cheating  or  defrauding  his  creditors,  or  of  hindering  and  delay- 
ing them  in  the  collection  of  their  debts; 

— a  creditor  may  bring  an  action  on  a  claim  before  it  is  due,  and  have  attachment 
against  the  property  of  the  debtor;  and  the  proceedings  on  such  attachment  shall 
be  conducted  in  all  respects  as  if  the  claim  were  due;  but  judgment  must  not  be 
rendered  in  the  action  under  [until]  the  debt  or  claim  upon  which  such  attachment 
is  made  and  shall  become  due  and  payable. 


Before  justices  of  the  peace — §§  322-325, 

In  bastardy  cases — §  741. 

Exemptions— §§  322-325. 

Lien  of  attachment— VoL  ii,  p.  1078,  §  1811. 


DELAWARE. 

[Revised  Code  of  1852,  as  amended  1874  and  1875.] 


CHAP.   CIV. — OF  ATTACHMENTS. 

§1. — A  writ  of  domestic  attachment  may  be  issued  against  an  inhabitant  of 
this  state  after  a  return  to  a  summons,  or  capias,  issued  and  delivered  to  the  sher- 
iff, or  coroner,  ten  days  before  the  retiu-n  thereof,  showing  that  the  defendant  can- 
not be  found,  and  proof  satisfactory  to  the  court,  of  the  cause  of  action;  or  upon 
afiBdavit  made  by  the  plaintiff,  or  some  other  credible  person,  and  filed  -with  the 
prothonotary,  that  the  defendant  is  justly  indebted  to  the  plaintiff  in  a  sum  exceed- 
ing fifty  dollars,  and  has  absconded  from  the  place  of  his  usual  abode,  or  gone  out 
of  the  state,  with  intent  to  defraud  his  creditors,  or  to  elude  process,  as  is  believed. 

§  2. — The  writ  of  attachment  shall  be  directed  as  other  writs  are,  and  shall  com- 
mand the  officer  to  attach  the  defendant  by  all  his  goods  and  chattels,  rights  and 
credits,  lands  and  tenements,  in  whose  hands,  or  possession,  soever,  the  same  may 
be  found  in  his  bailiwick,  so  that  he  be  and  appear  at  the  next  superior  court,  to 
answer  the  plaintiff's  demand;  and  that  he  summon  the  defendant's  garnishees  to 
appear  at  the  said  court  to  declare  what  goods,  chattels,  rights,  credits,  money,  or 
effects  of  the  defendant,  they  have  in  their  hands  respectively. 

§  3.— -If  the  defendant  in  the  attachment,  or  any  sufficient  person  for  him,  will, 
at  any  time  before  judgment,  ajipear  and  give  security  to  the  satisfaction  of  the 
plaintiff  in  such  cause,  or  to  the  satisfaction  of  the  court  and  to  all  actions  brought 
against  such  defendant,  to  the  value  of  the  property,  rights,  credits  and  moneys 

II  AlTACiUIBKT— S. 


466  DELAWARE. 

attadied,  and  the  costs,  then  the  garnishees  and  all  property  attached  shall  be  dis- 
charged.    The  security  may  be  taken  thus:     "On  the day  of ,18 — , 

A.  B.  becomes  security  in  the  sum  of  that  C.  D.  shall  answer  the  demand 

of  E.  r.  in  this  suit,  and  shall  satisfy  any  judgment  to  the  extent  of  the  value  of 
the  property  attached,  that  may  be  recovered  against  him  therein;"  which  entry 
on  the  appearance  docket  shall  be  signed  by  the  security,  and  shall  be  an  obliga- 
tion of  record  of  the  same  force  and  effect,  and  subject  to  the  same  remedy  by  an 
action  of  debt,  as  any  other  obligation  for  the  payment  of  money  may  be. — 
[Amended  Statutes  1877,  voL  15,  p.  G12.] 

§  4. — The  sheriff,  or  other  oflBcer,  shall,  under  such  writ,  attach  all  the  defend- 
ant's property,  real  and  personal,  and  his  rights  and  credits,  that  can  be  found;  and 
shall  take  possession  of  the  said  personal  property,  rights  and  credits,  and  have 
them  inventoried  and  appraised,  and  shall  be  answerable  therefor;  but  if  he  can- 
not have  actual  possession  thereof,  be  shall  notify  the  person  in  whose  hands,  or 
possession,  they  are  supposed  to  be,  that  he  attaches  the  same  at  the  plaintiff's 
suit,  for  the  use  of  all  the  defendant's  creditors,  and  that  he  doth  summon  him,  as 
a  garnishee,  to  appear  and  answer  as  commanded  by  the  %vrit;  from  and  after  which 
answer,  the  personal  property,  chattels  and  effects,  so  attached,  shall  be  delivered 
to  the  sheriff",  unless  the  garnishee  will  give  security  for  the  same 

§  5. — The  sheriff,  or  other  officer,  shall  return  a  particular  account  of  all  prop- 
erty, rights,  or  credits,  attached,  and  the  appraised  value  thereof,  and  the  names 
of  all  garois^nees  summoned. 

§  8.  — If  any  property,  so  attached,  is  of  a  perishable  nature,  or  will  cause  ex- 
pense in  its  keeping,  the  court,  or  any  judge  thereof,  may  order  the  said  officer, 
on  due  notice,  to  sell  the  same,  and  retain  the  money,  subject  to  the  order  of  court. 

§  7. — If  any  garnishee,  duly  summoned,  shall  not  appear  as  required,  he  may 
be  compelled,  by  attachment,  to  appear  and  answer,  or  jjlead,  and  he  shall  be  so 
compelled  within  two  terms,  or  the  attachment  shall,  as  to  him,  be  dissolved.  If 
he  a^jpear,  and  at  the  request  of  the  plaintiff,  or  any  other  creditor,  answers  under 
oath  that  he  had  no  money,  goods,  chattels,  rights,  credits,  or  effects  of  the  defend- 
ant, liable  to  attachment,  in  his  hands  or  possession,  at  the  time  he  was  notified  of 
the  attachment,  or  at  any  time  after,  he  shall  be  discharged.  He  may  also,  at  the 
election  of  the  plaintiff,  or  other  creditor,  make  a  special  declaration;  upon  which 
judgment  shall  be  rendered  by  the  com-t  according  to  law.  But  if  any  creditor 
of  the  defendant  shall  require  him  to  pilead,  he  shall  not  be  permitted  to  answer, 
but  shall  i:ilead  "nulla  bona,"  on  which  the  pilaintiff,  or  any  other  creditor,  may 
take  issue  and  go  to  trial.  And  if  it  be  found  that  the  garnishee  had,  at  the  time 
he  was  notified  of  the  attachment,  or  at  any  time  after  and  before  his  plea  pleaded, 
any  money,  goods,  chattels,  or  effects,  of  the  defendant,  in  his  hands,  or  possession, 
the  jury  shall  render  a  verdict  for  the  plaintiff,  or  such  other  creditor,  and  assess 
damages  to  the  value  of  such  property,  and  judgment  shall  be  entered  against  such 
garnishee  therefor,  with  costs;  but  the  money,  le\'ied  thereon,  shall  be  distributed 
among  all  the  defendant's  creditors,  as  is  hereinafter  directed. 

§  8. — Any  judgment  against  a  garnishee  as  aforesaid,  shall  be  pleadable  in  bar 
to  any  action  at  the  suit  of  the  defendant. 

§  9. — If  the  plaintiff,  in  any  writ  of  attachment,  or  any  creditor  of  the  defend- 
ant therein,  or  any  credible  i^erson  in  behalf  of  such  plaintiff  or  creditor,  wiU  make 
affidavit  that  any  garnishee  summoned  or  to  be  summoned  thereon,  is  not  an  in- 
habitant of  the  county  where  the  attachment  is  depending,  or  that  he  believes  such 
garnishee  is  about  to  leave  the  said  comity,  and  that  he  also  believes  such  gar- 
nishee has  property  of  the  defendant  in  his  hands,  or  owes  the  defendant  money, 
■whether  it  is  due  or  not,  then  the  said  plaintiff,  or  creditor,  may  issue  a  capias 
against  such  garnishee,  and  hold  him  to  bail  for  his  appearance  at  court  to  answer, 
or  p>lead,  as  aforesaid. 

§  10. — On  the  return  of  a  ■WTit  of  attachment,  the  court  shall  appoint  three  suit- 
able persons  to  audit  the  claims  of  the  defendants  creditors  (except  such  of  them 
as  have  sued  out  attachment  before  a  justice  of  the  peace,  and  attached  any  prop- 
erty, rights,  or  credits  of  the  defendant,  who  shaU  be  barred  from  any  tlividend  or 
benefit  under  this  proceeding),  and  shall  adjust  and  ascertain  all  their  demands, 
including  that  of  the  plaintiff  in  the  attachment. 

§  11. — The  auditors  shall  severally  be  sworn  faithfully  to  discharge  their  duty 
according  to  the  best  of  their  skill  and  knowledge.  They  shall  give  thirty  days'  no- 
tice to  the  creditors  of  the  time  and  place  of  their  first  meeting,  by  advertisements 
posted  at  the  court-house  door,  and  at  least  five  other  public  places  of  the  county; 
and  their  subsequent  sittings  shall  be  by  adjournment,  duly  made  and  publicly 


DELAWARE.  467 

announced.  They  may  investigrate  any  claim  presented,  in  any  form  they  judge 
best,  and  may  examine  any  of  the  creditors  upon  oath.  On  the  receipt  of  the  pro- 
ceeds of  sale  of  the  property  attached,  or  any  part  thereof,  the  auditors  shall  cal- 
culate and  settle  the  proportions  and  dividends  due  the  several  creditors,  allowing 
to  the  creditors  attaching  and  prosecuting  the  same  to  judgment,  a  double  share, 
or  dividend,  if  such  shall  not  exceed  theii-  debt;  and  they  shall  make  report  to  the 
next  term  of  the  court  after  such  apportionment,  and  on  confirmation  of  the  report, 
shall  forthwith,  on  pain  of  attachment,  pay  over  to  the  several  creditors  their 
repective  shares  of  such  proceeds  according  to  such  apiaortionment. 

§  12. — The  court  may  hear  exceptions  to,  and  correct  such  account  and  report, 
either  in  the  allowance  or  regulation  of  claims,  in  the  calculations,  dividends,  or 
apportionment,  or  otherwise. 

§  13. — Provided,  that  before  any  creditor  shall  receive  any  dividend  or  share, 
so  distributed,  he  shall,  with  sufficient  surety,  enter  into  recognizance  to  the 
debtor,  before  the  prothonotary,  in  a  sufficient  sum  to  secure  the  repayment  of 
the  same  or  any  part  thereof,  if  the  said  debtor  shall,  within  one  year  thereafter, 
appear  in  the  said  court  and  disprove  or  avoid  such  debt  or  such  part  thereof.  The 
proceeding  for  this  purpose  may  be  by  motion  to  the  coxu:t,  and  an  issue  framed 
and  tried  before  the  same. 

§  14. — Every  creditor  who  shall  neglect  duly  to  present  his  claim,  in  person  or 
by  attorney,  to  said  auditors,  according  to  notice,  or  to  make  proof  thereof,  a.s 
required,  shall  be  debarred  from  receiving  any  share  or  dividends  in  the  distribution 
to  be  made  by  the  auditors. 

§  15. — Judgment  shall  be  given  for  the  plaintiff  in  the  attachment  the  second 
term  after  issuing  the  writ,  unless  the  defendant  shall  enter  special  bail  as  afore- 
said; whereupon  the  court  shall  make  an  order  that  the  sheriif  shall  sell  the  prop- 
erty attached,  on  due  notice,  and  pay  the  i^roceeds  (deducting  legal  costs  and 
charges)  to  the  auditors  for  distribution. 

§  16. — Any  balance  remaining  due  the  creditors,  after  such  distribution  of  the 
proceeds,  may  be  collected  as  other  debts;  and  any  overplus,  after  paying  all  the 
claims  allowed  and  costs,  shall  be  returned  to  the  defendant,  or  his  executors, 
administrators,  or  assigns. 

§  17. — Any  surety  of  the  defendant  by  recognizance,  bond,  bail,  assumption,  or 
otherwise,  shall  be  entitled  to  prove  the  claim,  arising  on  such  liability,  before  the 
auditors,  and  to  share  in  the  distribution. 

§  18. — No  second  writ  of  domestic  attachment  shall  issue  against  the  defendant, 
unless  the  first  shall  not  be  executed,  or  shall  be  quashed,  or  dissolved  by  the 
court,  or  discontinued  by  the  plaintiff  with  consent  of  a  majority  of  the  creditors: 
and  if  the  plaintiff  shall  die,  or  be  satisfied  of  his  debts,  it  shall  not  stop  the  pro- 
ceedings; but  the  name  of  his  executor  or  administrator,  or  of  any  other  creditor, 
may,  on  suggestion  of  the  fact,  be  substituted  in  his  stead. 

§  19.— A  writ  of  foreign  attachment  may  be  issued  against  any  person  not  an 
inhabitant  of  this  state,  after  a  return  to  a  summons,  or  capias,  issued  and  deliv- 
ered to  the  sheriff,  or  coroner,  ten  days  before  the  return  thereof,  showing  that  the 
defendant  cannot  be  found,  and  proof,  satisfactory  to  the  coiu-t,  of  the  cause  of 
action;^  or  upon  affidavit  made  by  the  plaintiff,  or  some  other  credible  person,  and 
filed  with  the  prothonotary,  that  the  defendant  resides  out  of  the  state,  and  is 
justly  indebted  to  the  said  plaintiff  in  a  sum  exceeding  fifty  dollars.  And  where 
there  are  two  or  more  defendants,  one  a  resident  of  the  state,  but  without  available 
means  to  pay  the  plaintiff's  claim,  the  fact  may  be  so  stated  in  such  affidavit,  and 
the  attachment  thereon  may  issue  against  the  non-resident  defendant,  or  defend- 
ants, with  the  same  effect  as  if  such  non-resident  defendant  or  defendants  was  or 
were  the  only  defendant  or  defendants  in  the  cause. — [Amended  Statutes  18S1, 
vol.  10,  p.  70U.] 

§  20.— The  said  writ  shall  be  framed,  directed,  executed,  and  returned,  and  like 
proceedings  had,  as  in  the  case  of  a  domestic  attachment,  except  as  to  the  appoint- 
ment of  auditors  and  distribution  among  creditors;  for  every  plaintiff  in  a  foreign 
attachment  shall  have  the  benefit  of  his  own  discovery,  and,  after  judgment,  may 
proceed,  by  order  of  sale,  fieri  facias,  capias  ad  satisfaciendum  or  otherwise,  as  on 
other  judgments.  Provided,  that  before  receiving  any  sum  under  such  judgment, 
the  plaintiff  shall  enter  into  recognizance  as  required  by  section  13  preceding. 

§  21. — All  sales  under  this  chapter  shall  be  good  against  the  defendant,  his 
executors,  administrators  and  assigns;  and  if  action  be  brought  against  any  officer, 


468  DELAWARE. 

or  other  person,  acting  tinder  the  authority  of  this  chapter,  he  may,  under  the 
general  issue,  },dve  this  chapter  in  evidence  in  his  justification. 


A  SUTPLEMENT  TO  CHAPTER  104  OF  THE  REVISED  STATUTES  OP  THE  STATE 

OF  DELAWARE. 

§  1. — A  writ  of  foreign  attachment  may  be  issued  out  of  the  superior  court  of 
this  state  against  any  corporation,  aggregate  or  sole,  not  created  by,  or  existing 
under,  the  laws  of  this  state,  upon  affidavit  made  by  the  plaintiff,  or  any  other 
credible  person,  and  filed  with  the  prothonotary  of  said  court,  that  the  defendant 
is  a  corporation,  not  created  by,  or  existing  under,  the  laws  of  this  state,  and  is 
justly  indebted  to  the  said  j^laintiff  in  a  sum  of  money,  to  be  specified  in  said 
affidavit,  and  which  shall  exceed  fifty  dollars. 

§2. — The  said  writ  shall  be  framed,  directed,  executed,  and  returned,  and  like 
proceedings  had,  as  in  the  case  of  a  foreign  attachment  issued  under  the  chapter  to 
■which  this  act  is  a  supplement,  except  that  attachments  to  be  issued  under  this 
act  shall  be  dissolved  only  in  the  manner  hereinafter  provided. 

§  3.— In  any  attachments  to  be  issued  under  this  act,  judgment  shall  be  given 
for  the  plaintiff  at  the  second  term  after  the  issuing  of  the  wi-it,  unless  the  defend- 
ant shall  liave  caused  an  appearance  by  attorney  to  be  entered,  in  which  case  the 
like  proceeding  shall  be  had  as  in  suits  commenced  against  a  corporation  by  sum- 
mons: Provided,  however,  if  the  defendant  in  the  attachment,  or  any  sufficient 
person  for  him,  shall,  at  any  time  before  judgment,  give  secm-ity  for  the  payment 
of  any  judgment  that  may  be  recovered  in  said  proceedings,  with  costs,  then  the 
garnishees  and  all  the  property  attached  shall  be  discharged,  and  the  attachment 
dissolved,  and  like  proceedings  be  had  as  in  other  cases  of  foreign  attachment  under 
the  act  to  which  this  is  a  supplement,  in  which  the  attachment  has  been  dissolved 
by  special  bail.  Such  security  shall  be  approved,  and  the  form  and  amount  thereof 
determined,  by  the  court  in  term  time,  or  by  any  judge  thereof,  in  vacation.  But 
the  court  may  prescribe  the  form  of  such  security  by  general  rule  in  that  behalf. — 
[Amended  Statutes  1875,  p.  305.]^ 

ATTACHED  ON  MESNE  PROCESS 

§  11. — The  said  franchise  of  toll,  with  all  its  rights  and  incidents,  shall  also  be 
liable  to  be  attached  on  mesne  process;  and  such  process  shall  be  served  by  an  at- 
tested copy,  with  the  officer's  retmn  thereon,  being  left  with  the  treasurer,  clerk, 
or  some  director  of  the  company,  thirty  days  before  the  return  day  thereof. 

ATTACHMENT  OF  STOCK. 

§  13. — The  shares  of  any  person  in  any  incorporated  company,  with  all  the 
rights  thereto  belonging,  may  be  attached  for  debt,  or  other  demands;  and  so  many 
of  said  shares  may  be  sold  at  public  vendue,  to  the  highest  bidder,  as  shall  be  suffi- 
cient to  satisfy  the  debt,  or  other  demand,  interest  and  costs,  upon  an  order  issued 
therefor  by  the  court  from  which  the  attacliment  process  issued,  and  after  such 
notice  as  is  required  for  sales  upon  execution  process.  If  the  debtor  lives  out  of 
the  county,  a  cojjy  of  the  advertisement  shall  also  be  forwarded  by  mail  to  his  ad- 
dress ten  days  before  the  sale,  and  shall  be  published  in  a  newspaper  printed  in 
the  county  of  his  residence,  if  there  be  any. 

§  14.— When  stock  shall  be  so  attached,  a  certified  copy  of  the  process  shall  be 
left  bj'  the  officer  with  the  president,  cashier,  or  treasurer  of  the  company,  who 
shall  give  such  officer  a  certificate  of  the  number  of  shares  held,  or  owned,  by  the 
debtor  in  such  company,  with  the  number,  or  other  marks,  distinguishing  the 
same,  anything  in  the  charter  or  by-laws  of  said  company  to  the  contrary  not- 
withstanding. 

§  15. — If  the  shares  of  stock,  or  any  of  them,  be  sold  as  aforesaid,  any  assign- 
ment or  transfer  thereof,  Ijy  the  debtor,  after  attachment  so  laid,  shall  be  void; 
and  if,  after  sale  made  and  confirmed,  a  certified  coj^y  of  the  order  of  sale  and  re- 
turn be  left  with  such  president,  cashier,  or  treasurer,  the  purchaser  shall  be 
thereby  entitled  to  the  shares  so  purchased,  and  all  income,  or  dividends,  which 
may  have  been  declared  or  become  payable  thereon  since  the  attachment  laid;  and 
such  sale,  returned  and  confirmed,  shall  transfer  the  shares  sold  to  the  purchaser 
as  fully  as  if  the  debtor,  or  defendant,  had  transferred  the  same  to  him  according 
to  the  charter  and  by-laws  of  the  comiiany,  anything  in  said  charter,  or  by-laws, 
to  the  contrary  notwithstanding:  Provided,  that  no  order  of  sale  shaU  be  issued 
uutil  after  final  judgment  shall  be  rendered  in  any  case. 


FLORIDA.  4G9 

§  16. — The  money  arising'  from  the  sale  of  such  shares  shall  be  supplied  and 
paid,  by  the  officer  receivinj^  the  same,  as  by  law  is  directed  as  to  the  sale  of  per- 
sonal property  in  cases  of  attachment. 

§  17. — Any  proceedings  under  this  chapter  may  be  had  in  any  county  in  which 
either  the  creditor  or  the  i^resident,  cashier,  treasurer,  or  any  director  of  such  cor- 
poration may  reside,  or  in  which  there  may  be  a  toll-house,  or  gate,  of  such 
company. 

Before  justices  of  the  peace — Chap.  99,  pp.  598-620. 

Liens  against  vessels — Laws  1879,  p.  211. 

Exemptions— Chap.  Ill,  and  Laws  1875,  p.  309;  Laws  1881,  p.  708. 

For  rent— Chap.  120,  p.  714. 


FLORIDA. 

[McHlellan's  Digest,  1881,  and  Statutes  of  1883.] 


CHAPTER  VII. — ATTACHMENT. 

§  1. — It  shall  be  lawful  for  any  clerk  of  the  circuit  courts  of  this  state,  to  grant 
•writs  of  attachment  ret^irnable  to  his  ovm  court,  directed  to  the  sherifF,  or  other 
proper  officer,  commanding  him  to  attach,  and  take  into  custody  so  much  of  the 
lands,  tenements,  goods  and  chattels  of  the  party  against  whose  property  the  writ 
is  issued,  as  will  be  sufficient  to  satisfy  the  debt  or  sum  demanded,  with  costs,  by 
plaintiff  in  attachment. 

§  2. — It  shall  be  lawful  for  a  justice  of  the  peace  (in  cases  only  where  property 
is  being  actually  removed  from  the  state,  and  the  party  plaintiff  is  imable  to  obtain, 
process  of  attachment  from  the  clerk  of  the  circuit  court)  to  grant  \vrits  of  attach- 
ment, in  cases  where  the  amount  claimed  is  above  the  jurisdiction  of  a  justice  of 
the  peace,  returnable  to  the  circuit  court  of  the  county  in  which  such  writ  shall 
have  been  granted. 

3. — Any  creditor  shall  be  entitled  to  proceed  by  writ  of  attachment,  in  a  jus- 
tice's court,  against  the  projierty  of  his  debtor  in  the  following  cases,  and  wpon  the 
following  conditions:  Before  any  such  writ  of  attachment  shall  be  issued,  the  plaint- 
iff or  some  person  in  his  behalf  shall  make  and  file  ^sdth  the  justice  an  affidavit, 
stating  that  the  defendant  therein  is  indebted  to  plaintiff  in  any  sum  of  money, 
specifying  the  amount  of  such  indebtedness  as  near  as  may  be,  over  and  above  all 
legal  set-offs,  and  that  the  same  is  due  upon  express  or  imjilied  contract,  or  will 
become  due  within  three  months,  or  upon  the  judgment  or  decree  of  some  court, 
and  containing  a  fm-ther  statement  that  he  knows,  or  has  good  reason  to  believe, 
that  the  party  from  whom  it  is  due  will  fraudulently  part  with  his,  her  or  their 
property  before  judgment  can  be  recovered,  or  is  actually  removing,  or  about 
to  remove,  his,  her  or  their  i^roperty  out  of  the  county  where  the  attachment  is 
applied  for,  or  resides  beyond  the  limits  of  the  state,  or  has  absconded  or  so  con- 
ceals or  secretes  himself  or  herself  that  the  ordinary  process  of  law  cannot  be  served 
upon  him  or  her,  or  is  secreting  his  or  her  property,  or  fraudulently  disposing  of 
the  same,  or  that  the  defendant  contracted  the  debt  under  false  or  fraudulent  rep- 
resentations. 

§  4. — Writs  of  attachment,  now  authorized  by  statutes  of  this  state,  to  be 
issued  where  the  debt  or  demand  is  due,  shall  in  no  case  be  issued,  unless  the  party 
applying  for  the  .same,  or  his  agent  or  attorney,  shall  first  make  oath  in  writing, 
before  a  justice  of  the  peace,  or  clerk  of  the  circuit  court,  as  is  now  provided  Ijy 
law,  that  the  amount  of  the  debt  or  sum  demanded  is  actually  due,  and  also  that 
he  or  she  has  reason  to  believe  the  party  from  whom  it  is  due  will  fraudulently  part 
with  his,  her  or  their  property  before  judgment  can  be  recovered  against  him,  her 
or  them  (as  the  case  may  be),  or  is  actually  removing  his,  her  or  their  property  out 
of  the  state  of  Florida,  or  about  to  remove  it  out  of  the  state,  or  resides  beyond  the 
limits  thereof,  or  is  actually  removing  or  about  to  remove  out  of  the  state,  or  ab- 


470  FLORIDA. 

Bconds  or  conceals  himself  or  herself,  or  is  secreting  his  or  her  property  or  fraudu- 
lently disposing  of  the  same,  or  that  he  or  she  is  actually  removing  or  about  to 
remove  beyond  the  judicial  circuit  in  which  he,  she  or  they  reside. 

§  5.— When  any  executor  or  administrator  resides,  or  has  removed  beyond  the 
limits  of  this  state,  and  there  are  assets  of  the  testator  or  intestate  in  this  state,  it 
may  be  lawful  for  any  person  having  a  debt  or  demand  against  the  estate  of  the 
deceased,  to  take  out  an  attachment  against  such  assets,  upon  making  oath,  ia 
vritiug,  that  the  above  debt  or  sum  demanded  is  actually  due,  and  that  the  exec- 
utor or  administrator,  as  the  case  may  be,  resides  or  has  removed  beyond  the  limits 
of  this  state:  Provided,  that  no  attachment  shall  issue  if  the  said  executor  or  ad- 
ministrator shall  have  any  legally  authorized  and  publicly  known  agent  in  the 
Btate;  service  of  any  summons  upon  whom  shall  be  as  good  and  valid  as  if  it  had 
been  served  upon  the  person  of  the  said  executor  or  administrator. 

§  6. — "Whenever  any  portion  of  the  crops  cultivated  by  laborers  shall  be  re- 
moved or  attempted  to  be  removed  from  the  premises  whereon  they  were  grown  or 
housed,  or  ginned  or  packed,  or  when  there  is  good  reason  to  believe  such  removal 
will  be  attempted  without  the  full  payment  of  all  wages  due  to  such  laborers  for 
Buch  services,  or  their  written  consent  to  such  removal  of  the  crops,  then  such 
laborer  or  laborers,  their  agents  or  attorney,  may  apply  to  any  justice  of  the  peace, 
county  judge,  or  clerk  of  the  circuit  court  within  the  county  wherein  any  portion 
of  such  crops  may  be  found,  and  upon  such  application,  such  officers  shall  issue  a 
writ  of  attachment,  and  gave  the  same  to  any  sheriff,  deputy  sheritf,  constable,  or 
deputy  constable,  who  shall  forthwith  proceed  to  levy  upon  and  take  possession  of 
such  crop,  or  a  sufficient  amoimt  thereof  to  satisfy  the  debt  and  probable  cost  of 
suit. 

§  7. — In  case  of  the  absence  of  the  proper  officer,  the  officer  issuing  the  writ 
shall  deputize  some  citizen,  who  shall  proceed  to  execute  the  attachment,  and  any 
person  so  deputized  who  shall  refuse  or  neglect  to  execute  such  attachment  shall  be 
deemed  guilty  of  a  misdemeanor,  and  lined  not  less  than  one  hundred  dollars  and 
costs. 

§  8. — WTien  such  attachment  is  issued  by  a  justice  of  the  peace,  and  the  amoimt 
exceed  one  hundred  dollars,  the  vrrit  shall  be  retm-nable  to  the  circuit  coiul;  and 
all  cases,  whether  tried  before  a  justice  of  the  peace  or  other  court,  shall  be  tried  at 
the  first  term  after  issuance. 

§  9.— If  any  person  seeking  redress  by  virtue  of  sections  6,  7  and  8  of  this  chap- 
ter, on  filing  the  affidavit  necessary  to  have  such  attachment  issued,  shall  also 
make  oath  that  he  is  unable  to  give  secm'ity  on  the  bond  required  liy  the  laws  of 
this  state  in  attachment  cases,  then  the  attachment  shall  issue  without  any  security 
on  the  bond. 

§  10.— It  shall  be  the  duty  of  the  judge  of  the  coiui;  or  justice  of  the  peace 
trying  the  case,  after  hearing  and  determining  the  validity  of  the  claim,  if  judg- 
ment is  rendered  against  the  defendant,  to  issue  execution  within  five  daj-s  after 
the  rendition  of  such  judgment,  commanding  the  officer  into  whose  hands  such 
execution  may  be  i^laced  to  proceed  and  make  the  money,  and  make  due  return 
thereof  within  ten  days. 

§  11. — Proceedings  under  this  law  shall  be  conducted  in  the  same  manner  as 
provided  by  the  laws  on  attachments  now  in  force,  except  when  they  conflict  with 
the  provisions  of  this  law. 

§  12. — Affidavit  may  be  made,  and  writs  of  attachment  issued,  as  hereinbefore 
mentioned,  at  any  stage  of  the  cause,  concerning  any  property,  debt,  or  demand 
claimed. 

§  13. — It  shaU  be  lawful  for  any  person  to  obtain  a  writ  of  attachment,  whether 
the  debt  or  demand  be  due  or  not:  Provided,  that  the  same  %vill  become  rlue  within 
nine  months  from  the  time  of  applying  for  said  writ  of  attachment:  And  provided 
also,  that  at  the  time  of  such  apijlication  the  person  against  whom  the  debt  or 
demand  charged  shall  be  actually  removing  his  or  her  property  beyond  the  limits 
of  this  state,  or-Jse  fraudulently  disposing  of,  or  secreting  the  same  for  the  jjurpose 
of  avoiding  the  payment  of  his  or  her  just  debts  or  demands. 

§  14. — Such  writ  shall  in  no  case  be  issued  unless  the  party  applying  for  the 
same,  or  his  agent  or  attorney,  shall  first  make  oath  in  writing  that  the  amount  of 
the  debt  or  demand  claimed  and  charged  against  the  opposite  party  is  actually  an 
existing  debt  or  demand;  stating  also  in  said  oath  in  writing  the  time  when  said 
debt  or  demand  will  actually  became  due  and  payable;  and  also  that  the  pai-ty 
against  whom  the  said  WTit  of  attachment  is  ax^pLied  for  is  actually  removing  his  or 


FLORIDA.  471 

her  property  beyond  the  limits  of  this  state,  or  (as  the  case  may  be)  is  fraudulently 
disjiosing  of,  or  secreting  the  same  for  the  purpose  of  avoiding  the  payment  of  his 
or  her  just  delit  or  demand,  satisfactory  proof  of  which  shall  be  demanded 'and 
produced  to  the  officer  granting  the  attachment. 

§  15. — No  attachment  shall  issue  until  the  party  applying  for  the  same,  by  him- 
self or  by  his  agent  or  attorney,  shall  enter  into  bond  with  at  least  two  good  and 
sufficient  securities  payable  to  the  defendant,  irt  at  least  double  the  debt  or  sum 
demanded,  conditioned  to  pay  all  costs  and  damages  the  defendant  may  sustain  in 
consequence  of  improperly  suing  out  said  attachment:  Provided,  nevertheless,  that 
the  bond  taken  in  case  of  attachment  shall  not,  on  account  of  any  informality  in 
the  same,  be  adjudged  void  as  agairust  obligors,  nor  shall  they  be  discharged  there- 
from, although  the  attachment  be  dissolved  by  reason  thereof. 

§  16.  — The  property  so  attached  may  at  any  time  be  replevied  by  the  said  de- 
fendant, or  some  other  person  for  him,  giving  bond  to  the  officer  le^-ying  such 
attachment,  payable  to  the  plaintiff,  with  good  and  sufficient  security,  to  be  ap- 
proved by  such  officer,  in  double  the  value  of  the  property  levied  on,  conditioned 
for  the  forthcoming  of  the  property  replevied,  and  to  abide  the  final  order  of  the 
court. 

§  17. — In  all  cases  when  any  writ  of  attachment  shall  be  issued,  the  property 
attached  shall  be  discharged  and  restored  to  the  defendant  or  defendants  on  his,  her 
or  their  entering  into  bond  with  sufficient  security,  to  be  approved  by  the  court  to 
which  the  vrc'it  is  returnable,  conditioned  for  the  payment  to  the  plaintiif  in  attach- 
ment of  the  debt  or  demand  when  the  same  shall  become  due,  or  said  prc^serty  so 
attached  may  be  replevied  according  to  law  as  in  other  cases. 

§  18.  ^The  service  of  a  writ  of  attachment  shall  not  operate  to  dispossess  the 
tenant  of  any  lands  or  tenements,  but  such  service  shall  bind  the  property  at- 
tached, except  against  pre-existing  liens;  but  the  judgment,  in  a  suit  commenced 
by  attachment,  shall  be  satisfied  in  the  same  manner  as  other  judgments  obtained 
at  the  same  term  of  the  court  are,  or  shall  be  satisfied  out  of  the  lands  and  tene- 
ments, goods  and  chattels,  generally,  of  the  defendant  in  attachment:  Provided, 
hoivevcr,  that  judgment  rendered  against  any  garnishee  or  garnishees  in  said  suit 
shall  be  appropriated  exclusively  to  the  satisfaction  of  the  judgment  rendered 
against  the  defendant,  commenced  by  attachment  as  aforesaid. 

§  19. — All  personal  property  levied  on  by  attachment,  unless  replevied,  shall  re- 
main in  custody  of  the  officer  who  shall  attach  the  same  until  the  judgment  of  the 
court  shall  have  been  pronounced;  but  when  the  property  attached  shall  be  of  a 
perishable  nature,  it  shall  and  may  be  lawful  for  the  clerk  or  justice  of  the  peace 
who  ordered  the  attachment,  in  vacation  as  well  as  in  term  time,  to  grant  an  order 
for  the  sale  of  such  property,  after  such  public  notice  as  to  the  said  clerk  or  justice 
of  the  peace  shall  seem  expedient,  and  the  proceeds  of  such  sale  shall  be  paid  into 
court,  and  abide  the  judgment  thereof. 

§  20. — In  case  any  attachment  shall  be  levied  upon  property  claimed  by  any 
other  person  than  the  defendant  in  attachment,  such  person  may,  at  his  option, 
replevy  the  same  or  interpose  a  claim  in  the  manner  that  is  or  may  be  provided  in 
case  of  execution:  Provided,  that  in  neither  case  shall  bond  be  required  of  such 
person  in  a  greater  amount  than  double  the  value  of  the  property  so  claimed. 

§  21. — When  an  action  shall  be  begun  in  any  court  of  any  county  of  this  state 
for  the  attachment  of  personal  property  situated  in  such  county  at  the  time  of  be- 
ginning of  such  action,  and  such  property  shall  be  removed  from  such  county 
pending  such  action,  and  a  writ  is  issued  for  the  attachment  of  such  property,  it 
shall  be  the  duty  of  the  officer  to  whom  such  writ  is  addi-essed  and  delivered,  at 
once  to  make  his  return  of  the  fact  of  the  removal  of  such  property  as  aforesaid, 
and  the  plaintiff  in  such  suit  may  make  affidavit  stating  to  what  county  or  counties 
he  believes  the  property  has  been  removed,  whereuijon  an  alias  \vrit  shall  issue 
addressed  to  the  sheriff  of  such  last-named  county,  or  one  such  wi-it  addressed 
to  the  sheriff  of  each  county  to  which  such  i^roperty  or  a  portion  thereof 
has  been  removed,  who  shall  upon  the  receipt  of  such  writ  take  possession  of  said 
property  and  deliver  it  to  the  proper  officer  of  the  court  from  which  such  ■writ  was 
issued,  and  make  return  of  said  wTit  and  his  doings  in  the  premises  to  said  court, 
and  the  proceedings  shall  be  thereafter  as  in  other  actions  of  attachment. 

§  22. — All  questions  as  to  the  title  of  such  property  shall  be  adjudicated  in  the 
county  in  which  the  action  was  brought,  unless  the  venue  shall  be  changed  by  the 
court. 

§  23. — All  writs  of  attachment  shall  be  made  returnable  to  the  court  having 
jurisdiction  of  the  same,  and  to  the  next  rule-day  after  it  was  issued,  if  ten  daya 


472  FLORIDA. 

ehall  intervene  bet^veen  the  day  it  was  issued  and  the  next  rule-day,  and  if  not  ten 
daj's  then  to  the  next  rule-day  thereafter,  and  the  bond,  affidavit' and  other  papers 
on  which  such  attachment  may  have  been  obtained,  shall  be  filed  in  the  court  on  or 
before  the  rule-day  to  which  said  writ  of  attachment  is  returnable. 

§  24. — The  filing  of  the  declaration  and  other  pleadings,  in  a  suit  commenced 
by  attachment,  shall  be  governed  by  the  same  rules  which  govern  the  filing  of  thj 
declaration  and  other  pleadings  in  ordinary  suits  at  law,  and  judgment  shall  be 
rendered  therein  as  in  other  cases. 

§  25. — In  all  cases  where  property  shall  be  attached  and  not  replevied,  a  notice 
of  the  institution  of  the  suit  by  attachment  shall  be  personally  served  upon  the 
defendant,  or  siiall  be  published  for  three  months  in  some  public  newspaper  of  the 
circuit,  and  if  there  be  no  newspaper  published  in  such  circuit,  then  a  written  ad- 
vertisement in  some  public  place;  and  such  notice  shall  require  the  defendant  and 
all  other  persons  interested  to  appear  and  plead  to  the  declaration  filed  in  such 
cases;  and  it  shall  and  may  be  lawful  for  the  court,  upon  satisfactory  proof  of  the 
service  of  such  notice,  or  of  the  publication  of  such  notice,  and  upon  the  finding  of 
a  jury  of  inquest,  to  be  called  for  that  purpose,  to  award  their  judgment  upon  said 
finding,  and  execution  shall  issue  accorrlingly. 

§  26. — The  courts,  respectively,  to  which  such  attachments  are  returnable,  shall 
be  always  open  for  the  purpose  of  hearing  and  deciding  motions  for  dissolving 
such  attachments,  and  in  any  such  case,  upon  oath,  made  and  tendered  to  the 
court,  that  the  allegations  in  the  plaintiff's  affidavit  are  untrue,  either  as  to  the 
debt  or  sum  demanded,  or  as  to  the  special  cause  assigned,  whatever  it  may  be,  for 
granting  the  attachment,  then,  in  every  case,  it  shall  be  the  duty  of  the  court  to 
Lear  evidence  upon  the  issue  so  presented,  and  if,  in  the  opinion  of  the  com-t,  the 
allegations  in  the  plaintiff's  affidavit  are  not  sustained  and  proved  to  be  true,  the 
said  attachment  shall  be  dissolved:  Provided,  that  if  the  party  defendant  shall  de- 
mand the  same,  a  jury  shall  be  impanneled  to  try  the  issue  joined  as  aforesaid. 

§  27. — When  any  suit  shall  be  commenced  by  attachment,  and  the  same  on 
motion  be  dissolved  before  plea  to  the  action,  then,  in  every  such  case,  the  suit 
shall  abate  and  be  dismissed  from  the  court;  but  if  such  motion  is  made  after  the 

Earty  defendant  has  appeared  and  pleaded  to  the  action,  the  attachment  only  shall 
e  dissolved,  and  the  plaintiff  may  still  proceed  in  said  suit  and  prosecute  his  debt 
or  demand  to  final  judgment;  but  if  the  suit  be  already  pending,  and  the  attach- 
ment be  dissolved  at  any  stage  of  the  proceedings,  the  smt  itself  shall  abate  and 
be  dismissed:  Provided,  the  motion  to  dissolve  such  attachment  be  made  at  or  be- 
fore the  first  term  of  the  court  where  the  suit  is  pending. 

§  28. — In  all  cases,  on  motion  to  dissolve  an  attachment,  the  party  plaintiff  and 
the  party  defendant  shall  have  right,  and  equal  right,  to  demand  a  jury  to  try  any 
issue  made  on  such  motion. 

§  29. — If  there  be  two  or  more  suits  commenced  by  attachment  against  the  same 
person,  and  several  judgments  be  obtained  at  the  same  term,  they  shall  be  satis- 
fied, pro  rata,  out  of  the  judgments  which  may  have  been  obtained  against  the  gar- 
nishee or  garnishees  in  any  such  suits,  unless  the  defendant  in  such  suit  or  suits 
have  sufficient  other  property  to  satisfy  the  same. 

§  30. — Ship-chandlers,  store-keepers  and  all  dealers,  mechanics  and  workmen 
shall  have  a  lien  on  any  ship,  vessel,  steamboat  or  other  water-craft,  for  all  stores, 
provisions,  rigging  or  other  materials,  or  labor  or  services  of  any  kind  what- 
ever furnished  or  rendered  to  or  for  the  use  of  any  such  ship  or  vessel,  or  steam- 
boat or  other  water-craft,  and  which  lien  shall  have  a  preference  over  all  others: 
Provided,  however,  that  this  right  of  lien  is  to  cease  if  not  enforced  within  thii-ty 
days  after  the  same  accrued;  and  when  they  shall  be  unable  to  collect  the  said 
claim  or  debt  upon  demand  when  due,  and  shall  wish  to  enforce  the  said  lien,  he, 
she  or  they  may  make  oath  (and  which  oath  may  be  made  by  an  agent  or  an 
attorney  of  the  party)  to  said  claim  or  debt  before  the  clerk  of  the  circuit  court  of 
the  county  in  which  said  ship,  vessel,  steamboat  or  other  water-craft  may  then  lie 
or  be,  whereupon  and  not  before  the  said  clerk  shall  issue  a  writ  of  attachment 
against  said  ship,  vessel,  steamboat  or  other  water-craft,  returnable  to  the  circuit 
coiu-t  for  said  coimty,  directed  to  the  sheriff  of  said  coimty,  who  shall  execute  the 
same  by  le\'y  upon  the  ship,  vessel,  steamboat  or  other  water-craft,  which  he  shall 
take  into  possession  and  custody:  Provided,  that  the  sheriff  may  levy  upon  any 
property  on  board  the  ship,  vessel,  steamboat  or  other  water-craft  belonging  to  the 
owner  or  owners  thereof,  in  case  he  can  find  sufficient  such  property  to  satisfy  said 
claim  or  debt  and  costs. 

§  31. — ^\^len  any  such  claim  or  debt  shall  be  for  one  hundred  dollars  or  less, 
the  oath  aforesaid  shall  be  made  before  a  justice  of  the  peace  of  the  county  in  which 


FLORIDA.  473 

tte  ship,  vessel,  steamboat  or  other  water-craft  may  He  or  be,  who  shall  issue  a  writ 
of  attachment,  directed  to  all  and  singular  the  sheriffs  or  constables  of  sai<l  county, 
and  any  one  of  whom  may  execute  the  same  by  a  levy  upon  the  ship,  vessel,  steam- 
boat or  other  water-craft,  subject,  however,  to  the  same  provisions  as  in  the  pre- 
ceding section. 

§  32.— The  ship,  vessel,  steamboat  or  other  water-craft,  or  other  property  so 
levied  upon,  may  be  replevied  in  the  same  manner  as  in  other  cases  of  attachment; 
and  the  notice  by  personal  service  upon  the  owner  or  owners,  or  by  publication, 
and  all  the  subsequent  proceedings  in  any  suit  commenced  as  aforesaid,  shall  be 
the  same  as  those  iu  a  suit  under  the  general  law  of  attachments  of  this  state. 

§  33. — It  shall  not  be  held  necessary  in  suing  out  any  writ  of  attachment  umler 
this  law  to  set  forth  the  o\vners  of  said  vessels,  ship,  steamboat  or  other  water- 
craft,  but  suit  may  be  commenced  against  the  ship,  vessel,  steamboat  or  other 
water-craft,  and  the  master  or  mate  of  said  ship,  vessel,  steamboat  or  other  water- 
craft,  and  the  notice  served  upon  the  master  or  mate  shall  be  good  and  as  valid  as 
if  the  same  had  have  been  served  Upon  the  owner  or  owners;  nor  shall  any  suit 
abate  for  want  of  the  name  or  names  of  any  owner  or  owners  of  said  shij),  vessel, 
steamboat  or  other  water-craft. 

§  34. — If  any  mortgagor  of  personal  property  in  this  state,  or  other  person^ 
shall,  with  fraudulent  intent,  make  arrangements,  endeavor  or  attempt  to  remove 
the  same  beyond  the  limits  of  the  judicial  circuit  in  which  the  property  was  at  the 
time  of  the  execution  and  delivery  of  the  mortgage,  so  as  to  impair  the  rights,  in- 
terest, or  remedies  of  the  mortgagee,  or  the  assignee  of  such  mortgage,  it  shall  be 
competent  for  the  mortgagee  or  any  person  interested  in  the  said  mortgage,  upon 
making  an  affidavit  of  the  fact  before  a  judge  of  the  circuit  com-t,  or  before  any 
justice  of  the  peace,  or  the  clerk  of  the  circuit  court,  to  obtain  a  wi-it  of  attach- 
ment, to  be  directed  to  any  constable  or  sheriff,  requiring  him  to  attach  and  take 
into  his  custody  the  property  so  removed  or  attempted  to  be  removed;  or  if 
such  constable  or  sheriff  cannot  be  had,  then  any  other  indifferent  person  specially 
delegated  under  the  hand  and  seal  of  the  judge,  justice,  or  clerk  issuing  such 
attachment. 

§  3-5. — Such  writs  of  attachment,  whether  the  same  be  issued  by  a  judge  of  the 
circuit  court,  or  by  a  justice  of  the  peace,  or  by  the  clerk  of  the  circuit  court,  shall 
run  and  have  full  force  and  effect  in  every  county  of  this  state;  but  all  writs  of 
attachment,  when  the  real  sum  in  controversy  may  be  more  than  one  hundred  dol- 
lars, shall  be  made  returnable  to  the  circuit  court. 

§  36. — Such  attachment,  thus  applied  for,  shall  not  be  issued  till  after  the  party 
applying  shall  have  given  bond  with  two  securities,  in  double  the  amount  of  the 
debt  claimed,  to  be  approved  of  by  the  judge,  the  clerk,  or  justice  granting  said 
attachment,  to  pay  all  damages  the  defendant  may  sustain,  if  the  said  attachment 
should  be  abated  or  dismissed  for  any  cause  whatever. 

§  37. — Upon  application  of  the  mortgagor,  or  person  interested  in  the  mortgage, 
to  the  judge  of  the  circuit  in  which  the  writ  of  attachment  was  issued,  it  shall  be 
his  duty  to  order  a  venire  to  be  issued,  recjuiring  the  sheriff  to  summon  a  jury  to 
be  impanneled  before  him,  at  such  time  and  place  as  shall  be  specified  in  said  writ, 
then  and  there  to  try  and  determine  the  following  ia.cts:  first,  whether  the  iiroperty 
attached  was  actually,  bona  fide  mortgaged;  second,  whether  the  mortgagor,  or 
other  person  claiming  any  interest  in  such  property,  or  any  person  acting  under 
his  or  their  authority,  or  with  his  or  their  privity  or  consent,  so  fraudulently  in- 
tended, had  made  arrangements,  or  endeavored  or  attempted  to  remove  beyond 
the  limits  of  the  judicial  circuit  the  i^roperty  so  mortgaged  without  the  consent,  or 
contrary  to  the  wishes  of  the  mortgagee,  or  other  person  interested  in  the  said  mort- 
gage: and  if  the  finding  shall  he  in  the  affirmative,  the  jury  shall  then  proceed  to 
ascertain  the  amount  of  the  demand  under  the  said  mortgage,  and  shall  render 
a  verdict  for  the  same,  whether  the  same  be  due  or  not;  and  judgment  shall 
thereupon  be  entered  up,  and  execution  be  issued  and  levied,  as  in  other  cases  of 
execution. 

§  38.  —Upon  application  of  any  person  entitled  to  the  foreclosure  of  a  mort- 
gage of  personal  property  remaining  in  the  possession  of  the  mortgagor  or  mort- 
gagors, for  an  attachment  against  the  property  mortgaged,  it  shall  be  the  duty  of 
the  judge  of  the  court,  to  which  application  for  the  foreclosure  of  the  mortgage 
shall  be  made,  to  direct  the  issuing  of  a  writ  of  attachment,  which  the  clerk  of  the 
said  court  shall  accordingly  issue,  directed  to  the  ministerial  or  executive  oflTicer 
of  the  said  court,  commanding  him  to  attach,  levy  upon,  and  take  into  possession 
and  custody  the  said  mortgaged  proi^erty,  or  so  much  thereof  as  will  be  sufficient 
to  satisfy  the  debt  or  demand  of  the  petitioner  or  petitioners,  and  the  costs  and 


474  FLORIDA. 

charg'es  of  the  proceedings;  and  the  said  officer  shall  execnte  such  writ  without 
delay,  and  shall  retain  the  said  fjroperty  attached  in  his  ciistody  and  possession, 
until  the  judgment  of  foreclosure  shall  be  obtained,  when  he  shall  dispose  of  it 
according  to  law,  or  until  the  further  order  of  the  court  in  the  premises,  unless  it 
shall  be  replevied  in  the  manner  hereinafter  pointed  out;  but  no  such  writ  of  at- 
tachment shall  issue,  unless  the  petitioner  or  petitioners  for  foreclosure,  or  any  of 
them,  or  his,  her,  or  their  agent  or  attorney,  shall  make  oath  of  the  sxun  really  and 
truly  due  upon  the  mortgage  to  be  foreclosed;  and  that  he  has  reason  to  fear  that 
the  property  mortgaged  wiU  be  concealed,  so  that  the  ordinary  process  of  law  can- 
not reach  it,  or  that  it  will  be  removed  beyond  the  jurisdiction  of  the  court;  and 
shaU  exhibit  to  the  judge  the  original  mortgage,  or  any  other  evidence,  or  an  ac- 
knowledgment of  the  debt  or  demand  secured  by  it,  which  shall  appear  to  have 
been  given  by  the  mortgagor  or  mortgagors  at  the  time  the  application  for  such 
writ  of  attaehment  shall  be  made;  the  demand  of  the  said  attachment,  if  made  at 
the  time  of  fUing  the  petition  for  foreclosure,  must  be  contained  in  the  said  peti- 
tion, but  the  same  attachment  may  be  applied  for  by  petition,  and  obtained,  on  a 
complianee  with  the  aforesaid  requisitions,  at  any  time  before  the  judgment  of 
foreclosure. 

§  39. — It  shall  and  may  be  lawful  for  the  mortgagor  or  mortgagors,  or  any  other 
person  or  persons  ha\dng  an  interest  in  the  equity  of  redemption  of  any  personal 
property,  to  replevy  the  same  by  giving  bond,  with  at  least  two  good  and  sufficient 
securities,  in  a  sum  sufficient  to  cover  the  amount  of  the  debt  sworn  to  be  due  upon 
the  mortgage,  payable  to  the  ministerial  officer  of  the  comt  to  whom  the  writ  of 
attachment  shaU  have  been  directed,  and  conditioned  to  return  to  said  officer,  or 
his  successors  in  office,  the  said  property,  whenever  the  mortgage  of  it  shall  be 
foreclosed  by  the  judgment  of  the  court,  or  to  pay  such  sum  of  money  as  shall,  by 
the  said  judgment,  be  adjudged  to  be  due  to  the  petitioner  or  petitioners  for  fore- 
closure, and  all  the  costs  and  charges  of  the  proceedings  whenever  the  same  shall 
be  demanded;  but  no  such  replevy  shall  be  made  but  upon  the  payment  of  all  costs 
of  issuing  the  attachment,  and  of  the  proceedings  consequent  thereon,  and  the 
bond  so  given  on  replevy,  by  the  provisions  of  this  section,  shall  have  the  force 
and  effect  of  a  judgment;  and  nothing  contained  in  this  section  shall  be  so  con- 
Btrued  as  to  release  the  mortgaged  property  from  the  lien  created  by  said  mortgage. 

GARNISHMENT. 

§  1. — On  aU  judgments  or  decrees  rendered  in  the  several  courts  of  law  or  equity 
in  this  state,  it  shall  be  the  duty  of  the  clerks  of  said  com1;s,  on  the  suggestion  of 
the  plaintiff  or  plaintiffs  in  judgment  or  decree,  his,  her  or  their  agent  or  attorney, 
that  any  person  or  persons,  other  than  the  defendant  or  defendants  in  said  execu- 
tion, are  indebted  to  the  said  defendant  or  defendants,  or  have  any  of  the  effects  or 
property  of  such  defendant  or  defendants  in  his,  her  or  their  hands  or  possession,  or 
control,  to  issue  a  summons  or  garnishment,  directed  to  the  sheriff  or  other  proper 
officer  of  the  district  or  county  in  which  said  garnishee  or  garnishees  may  reside, 
and  commanding  the  said  garnishee  or  garnishees  to  appear  at  the  nest  rule-day  of 
the  court  to  which  said  garnishment  or  summons  is  returnable,  which  shall  be  the 
rule-day  next  after  the  date  of  or  after  the  issuing  of  said  garnishment  or  sum- 
mons: Provided,  there  be  ten  days  between  the  date  or  day  of  issuing  said  garnish- 
ment or  summons  and  the  next  rule-day  of  said  court;  and  if  there  be  not  ten  days, 
then  the  said  garnishment  or  summons  shall  be  made  returnable  to  the  next  rule- 
day  thereafter  of  said  com-t;  and  state  on  oath,  in  writing,  or  in  answer  to  inter- 
rogatories to  be  propounded  to  him,  her  or  them  (which  oath  the  said  clerks,  tmder 
the  authority  of  said  coiurts,  are  hereby  authorized  to  administer),  whether  he,  she 
or  they  are  indebted  to  the  said  defendant  or  defendants,  and  in  what  sum  or  sums, 
and  what  goods,  money,  chattels  or  effects  of  said  defendant  or  defendants  he,  she 
or  they  have  in  their  hands,  possession  or  control,  or  had  at  the  time  of  the  serxice 
upon  him,  her  or  them  of  the  said  summons,  or  if  he,  she  or  they  were  indebted  to 
eaid  defendant  or  defendants,  and  in  what  sum  or  sums,  at  the  time  of  the  service 
of  said  summons  (and  whether  he,  she  or  they  know  of  any  other  person  or  per- 
Bons  who  are  indebted  to  said  defendant  or  defendants,  or  who  may  have  any  of  the 
effects  of  said  defendant  or  defendants  in  their  hands) :  Provided,  the  plaintiff  in 
execution,  his  agent  or  attorney,  before  the  issuing  of  auch  summons  or  garnish- 
ment, shall  be  required  to  make  affidavit,  and  file  the  same  in  the  office  of  the 
clerk,  that  he  does  not  believe  that  the  defendant  has  in  his  possession  visible 
property  upon  which  a  levy  can  be  made  sufficient  to  satisfy  such  judgment  or  exe- 
cution. 

§  2. — Garnishment  process  may  issue  on  judgment  rendered,  whether  execution 
issued  on  said  judgment  be  returned  or  not:  Provided,  the  plaintiff  shall  first  make 
and  file  Avith  the  clerk  of  the  court,  where  or  by  whom  j  udgment  has  been  ren- 
dered, the  affidaAit  mentioned  in  the  first  section  of  this  chapter. 


FLORIDA.  475 

§  3. — Upon  the  return  of  any  such  summons,  if  it  shall  appear  that  said  sum- 
mons or  garnishment  has  been  lawfully  served  or  executed  (and  the  service  thereof 
shall  be  in  the  manner  now  provided  by  law  for  the  service  of  the  summons  ad 
respondendum),  upon  said  garnishee  or  garnishees,  and  he,  she  or  they  shall  fail  to 
appear  and  discover  on  oath  or  affirmation,  as  is  directed,  it  shall  be  lawful  for  the 
clerk  of  the  circuit  court,  after  solemnly  calling  such  garnishee  or  garnishees,  to 
enter  up  a  judgment  by  default  against  such  garnishee  or  garnishees,  and  thereupon 
a  scire  facias  shall  issue  against  such  garnishee  or  garnishees,  returnable  to  the 
next  rule-day  thereafter  of  said  court,  to  show  cause,  if  any  he,  she,  or  they  have, 
why  final  judgment  should  not  be  entered  against  him,  her,  or  them;  and  upon 
such  scire  facias  being  returned  executed,  and  such  garnishee  or  garnishees  shall 
fail  to  appear  and  discover,  as  is  directed,  the  said  clerk  shall  confirm  such  judg- 
ment, and  award  execution  for  the  plaintiff's  whole  judgment  and  costs. 

§  4. — If  any  garnishee  shall  enter  his  appearance  upon  the  return  of  the  sum- 
mons ad  respondendum,  in  the  court  in  which  he  may  be  sued,  he  shall  be  entitled  to 
a  continuance  till  the  next  ensuing  rule-day  of  said  court. 

§  5.— If,  upon  the  examination  of  any  garnishee,  it  shall  appear  to  the  court 
that  there  is  any  of  the  defendant's  or  defendants'  effects  or  property  in  the  hands 
of  any  person  or  persons  who  have  not  been  summoned,  such  cowct  shall,  upon  mo- 
tion of  the  plaintiff,  award  a  summons  or  garnishment  against  such  person  or  per- 
sons having  any  of  the  effects  or  property  of  the  defendant  or  defendants  in  his, 
her  or  their  custody,  hands,  or  possession  or  control,  who  shaU  appear  and  answer, 
and  be  liable  as  other  garnishees. 

§  6. — Whenever  the  plaintiff  in  the  execution  shall  allege  that  any  garnishee 
has  not  discovered  the  true  amount  of  debts  due  from  him  to  the  defendant  or 
defendants,  or  that  goods  and  chattels,  money  or  effects,  belonging  to  the  defend- 
ant or  defendants,  is  or  are  in  his  or  her  possession,  or  were  at  the  time  of  service 
of  said  summons,  the  court  shall  direct,  without  the  formality  of  pleading,  a  jury 
to  be  impanneled,  unless  a  good  cause  be  shown  by  either  party  for  a  continuance, 
to  inquire  what  is  the  true  amount  due  from  such  garnishee  to  the  defendant  or 
defendants,  and  what  goods,  moneys,  chattels,  or  effects  are  in  his  or  her  possession, 
belonging  to  the  said  defendant  or  defendants,  or  was  due,  or  were  in  his  or  her 
possession  at  the  time  of  the  service  of  said  summons.  If  the  finding  of  the  jury 
shall  be  against  said  garnishee,  the  court  shall  grant  judgment  in  the  same  manner 
as  if  the  facts  found  by  the  jury  had  been  confessed  by  him  or  her,  on  his  or  her 
examination,  with  the  costs  thereon.  If  the  jury  find  in  favor  of  the  garnishee, 
he  or  she  shall  recover  costs  against  the  plaintiff  or  plaintiffs. 

§  7. — When  said  garnishee  shall  confess  his  or  her  indebtedness  to  the  said  de- 
fendant or  defendants,  or  that  he  or  she  has  or  had  at  the  time  of  service  of  said 
summons,  any  goods,  moneys,  chattels,  or  effects,  in  his  or  her  hands  belonging  to 
said  defendant  or  defendants,  and  the  said  plaintiff  is  satisfied  with  the  statement, 
admission,  confession,  or  discovery,  then  the  coin-t  or  the  clerk  shall  award  judg- 
ment against  said  garnishee  for  the  amount  so  confessed  by  him  or  her,  and  execu- 
tion may  issue  for  the  same  against  said  garnishee;  and  if  that  be  not  sufficient  to 
satisfy  the  plaintiff's  judgment  against  said  defendant  or  defendants,  then  said 
execution  may  be  also  levied  on  the  goods,  chattels,  or  effects  of  said  defendant, 
so  admitted  or  confessed  by  said  garnishee,  to  be  in  his  or  her  hands  or  jjossession, 
or  to  have  been  in  his  or  her  hands  or  possession,  at  the  time  of  the  service  of  said 
summons,  which  shall  be  sold  in  the  same  manner  as  under  other  executions;  and 
if  said  garnishee  will  not  surrender,  provided  he  have  the  power  to  do  so,  the  said 
goods  and  chattels  belonging  to  the  said  defendant  or  defendants,  and  which  he  or 
she  has  confessed  in  his  or  her  hands  or  possession,  at  the  time  of  his  or  her  exam- 
ination, or  at  the  time  of  the  service  of  said  summons  or  garnishment,  then  execu- 
tion may  be  levied  on  the  property  of  said  garnishee  for  the  whole  amount  of  the 
plaintiff's  judgment  against  said  defendants,  or  for  so  much  of  said  judgment  as 
shall  then  be  unpaid;  and  the  officer  shall  proceed  to  sell  the  said  property  as  under 
other  executions.  But  said  garnishee  shall  have  the  right  to  release  his  property 
from  such  levy  and  sale,  by  surrendering  the  said  property  of  the  said  defendant 
or  defendants  to  the  officer  levying  said  execution,  on  the  day  and  hour  appointed 
for  the  sale  of  the  property  so  levied  on,  or  at  any  time  previous  to  the  day  of  sale. 

§  8. — When  any  garnishee  shall  have  any  of  the  goods,  chattels  or  effects  of  the 
said  defendant  or  defendants  in  his  or  her  hands  or  possession,  and  shall  surrender 
the  same,  the  constable,  sheriff  or  other  officer  shall  receive  said  property,  and 
shall  proceed  to  sell  the  same  as  if  it  were  levied  on  by  virtue  of  an  execution. 

§  9.— The  garnishee  or  garnishees  shall  be  allowed  by  the  court  reasonable  satis- 
faction for  his,  or  her,  or  their  attendance  out  of  the  effects  in  his  or  her  posses- 


476  FLORIDA. 

si  on;  and  if  there  should  be  no  such  effects  in  his  or  her  possession,  then  he  or  she 
shall  be  allowed  reasonable  satisfaction  for  his  or  her  attendance  against  the  plaint- 
iff or  plaintiffs. 

§  10. — All  property  in  the  hands  of  such  garnishee  or  garnishees  belonging  to 
any  such  defendant  or  defendants,  at  the  time  of  serving  any  such  process  of  gar- 
nishment, shall  be  bound  by  such  process. 

§  11. — The  clerks  of  the  said  courts  shall  keep  a  docket  of  garnishments,  wherein 
such  cases  shall  be  entered,  and  be  called  and  disposed  of  as  other  cases  are. 

§  12. — The  provisions  of  this  law,  so  far  as  they  are  applicable,  shall  apply  to 
cases  of  suits  commenced  by  attachment,  as  well  before  as  after  judgment  had 
therein:  Provided,  however,  that  where  judgment  shall  be  rendered  in  such  cases 
against  any  garnishee  or  garnishees,  on  his  or  her  confession,  or  after  trial  by 
jury,  as  hereinbefore  provided,  such  judgment  shall  not  be  enforced  until  after 
judgment  shall  be  rendered  against  the  defendant  or  defendants,  in  the  attachment 
suit;  and  in  no  case  shall  execution  be  issued  against  any  garnishee  or  garnishees 
for  more  than  the  amount  of  the  jurlgment  against  said  defendant  or  defendants  in 
said  attachment.  And  if  any  plaintiff  shall  discontinue  his  suit  by  attachment,  or 
be  nonsuited,  or  have  a  verdict  against  him  on  the  trial  in  said  suit,  then  said  judg- 
ment against  said  garnishee  shall  become  null  and  void,  and  such  garnishee  may 
have  execution  for  his  costs,  to  be  taxed  as  in  other  cases  against  said  plaintiff  in 
said  attachment  suit. 

§  13. — "When  no  property  of  the  defendant  can  be  found  to  levy  on,  under  any 
writ  of  attachment,  said  writ  may  be  served  by  ser^ace  of  summons  or  garnishment 
on  any  person  or  persons  owing  the  defendant  or  having  any  moneys,  goods,  chat- 
tels or  effects  of  said  defendant  in  his  or  her  hands,  and  such  service  shall  be  suffi- 
cient to  authorize  the  plaintiff  to  proceed  in  his  suit  against  such  defendant  as  if 
said  writ  of  attachment  had  been  levied  on  any  property  of  said  defendant;  but  if 
said  plaintiff  shall  fail  to  obtain  judgment  against  any  such  garnishee,  then  no 
judgment  shall  be  rendered  against  such  defendant  in  attachment,  and  if  judgment 
shall  have  been  rendered  against  him,  then  the  same  shaU  be  canceled. 

§  14. — In  addition  to  the  cases  now  provided  for  by  law  for  the  issuing  of  the 
process  of  garnishment,  it  shall  and  may  be  lawful  for  the  plaintiff  or  plaiatiffs, 
at  any  time  after  the  commencement  of  suit  and  before  final  judgment,  by  either 
him,  her  or  themselves,  agent  or  attorney  at  law  or  in  fact,  to  sue  out  a  writ  of 
gxtrnishment  as  is  now  contemplated  by  law  in  other  cases  provided  for:  Provided, 
the  plaintiff  in  action,  his  agent  or  attorney,  before  the  issuing  of  such  ■uTit  of 
garnishment,  shall  be  required  to  make  affidavit  and  file  the  same  in  the  office  of 
the  clerk,  where  the  suit  is  pending,  that  he  does  not  believe  that  the  defendant 
will  have  in  his  possession  visible  property  in  this  state  and  said  county  upon  which 
a  levy  could  be  made  suificient  to  satisfy  such  judgment  or  execution  which  he 
believes  he  shall  be  able  to  obtain  in  the  said  suit. 

§  15. — If  the  judgment  of  the  court  shall  be  in  favor  of  the  defendant  in  the 
suit,  then  and  in  that  event  the  plaintiff  shall  pay  all  the  cost  which  shall  have 
accrued  in  consequence  of  suing  out  said  'UTit  of  garnishment,  and  the  money 
brought  into  the  registry  of  the  court  therebj'  or  the  judgment  obtained  thereon, 
shall  inure  to  the  benefit  of  and  be  controlled  and  managed  by  the  said  defendant 
as  amply  and  completely  as  though  the  same  had  been  rendered  in  his  favor. 

§  16. — Hereafter,  whenever  an  attachment  shall.be  dissolved  after  plea  to  tho 
action,  and  there  shall  have  been  writ  or  writs  of  garnishment  issued  in  the  attach- 
ment suit,  the  same  shall  not  be  dismissed  or  abate  in  consequence  of  a  dissolution 
of  the  said  attachment,  but  shall  remain  good  and  binding,  and  in  full  force  and 
\'irtue,  and  abide  the  final  termination  of  the  action  commenced  by  said  attach- 
ment. 

§  17. — If  any  garnishment  process  shall  be  served  upon  any  owner  or  master 
of  any  steamboat  or  vessel,  the  same  shall  be  returned  to  the  first  rule-day  of  the 
court  having  jurisdiction,  and  if  no  answer  is  filed  a  writ  of  scire  facias  shall  issue 
returnable  to  the  next  rule-day,  and  if  no  answer  be  then  filed  or  a  return  made 
by  the  proper  officer  that  the  garnishee  is  not  to  be  found  -^vithin  his  bailiwick,  the 
judgment  shall  be  made  final  and  execution  shall  issue  thereon. 

§  18. — If  any  person  or  persons,  other  than  the  defendant  or  defendants,  shall 
claim  the  effects  in  the  hands  or  possession  of  any  garnishee,  and  sha^l  make  affi- 
d.ivit  that  the  said  effects  are  bona  fide  his  or  her  x^roperty,  the  court  shall  imme- 
didately  and  without  the  formality  of  pleading,  direct  a  jury  to  be  impanneled,  to 
inquire  of  the  right  of  such  x^roperty  between  such  claimant  and  the  x^laintiff,  un- 
less good  cause  be  shown  to  the  contrary;  and  if  the  finding  of  the  jiury  shall  ba 


FLORIDA.  477 

against  such  claimant,  the  plaintiff  shall  recover  costs;  and  if  the  jury  find  in. 
favor  of  such  claimant  he,  she  or  they  shall  recover  costs  against  the  plaintiff ; 
and  if  such  claim  be  interposed  after  a  levy  on  said  property,  and  affidavit  is  made 
as  aforesaid,  then  said  sheriff  or  other  officer  making  said  levy  shall  return  said  exe- 
cution with  his  levy  thereon  and  said  affidavit  of  said  claimant  to  the  clerk's  office 
from  which  said  execution  issued,  or  to  the  justice  of  the  peace  who  may  issue  said 
execution,  and  such  proceedings  shall  be  had  thereon  as  in  other  cases  of  claims 
made  to  property  taken  in  execution. 

§  19. — Upon  affidavit  made  before  the  clerk  of  the  court  in  which  any  judgment 
has  been  rendered,  either  by  the  judgment  creditor  or  his  attorney,  stating  that 
said  judgment  is  still  unsatisfied,  and  that  any  other  person  is  indebted  to  the  judge- 
ment debtor  and  within  the  jurisdiction  of  the  court,  it  shall  be  the  duty  of  said 
clerk  to  issue  an  attachment  or  order  attaching  all  debts  o\ving  or  accruing  from 
such  third  person  to  the  judgment  debtor,  to  answer  the  judgment  debt;  and  by 
the  same  or  any  subsequent  order  or  proceeding  the  person  upon  whom  the  said 
attachment  has  been  served  may  be  ordered  to  appear  before  the  court  to  show 
cause  why  he  should  not  pay  the  judgment  creditor  the  debt  due  from  him  to  the 
judgment  debtor,  or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  judgment 
debt. 

§  20. — Service  of  an  order  that  debts  due  or  accruing  to  the  judgment  debtor 
shall  be  attached,  or  notice  thereof  to  the  garnishee,  shall  bind  such  debts  in  his 
hands. 

§  21. — If  the  garnishee  does  not  forthwith  pay  into  the  court  the  amount  due 
from  him  to  the  judgment  debtor,  or  an  amount  equal  to  the  judgment  debt,  and 
does  not  dispute  the  debt  due  or  claimed  to  be  due  from  him  to  the  judgment 
debtor,  or  if  he  does  not  appear  to  the  summons,  then  the  judge  may  order  execu- 
tion to  issue,  and  it  may  be  sued  forth  accordingly,  without  any  previous  writ  or 
process  to  levy  the  amount  due  from  such  garnishee  toward  satisfaction  of  the 
judgment  debt. 

§  22. — If  the  garnishee  disputes  his  liability,  the  judgment  creditor  shall  be  at 
liberty  to  proceed  against  the  garnishee  by  writ,  calling  upon  him  to  show  cause 
why  there  should  not  be  execution  against  him  for  the  alleged  debt,  or  for  the 
amount  due  to  the  judgment  debtor,  if  less  than  the  judgment  debt,  and  for  costs 
of  suit;  and  the  proceedings  upon  such  suit  shall  be  the  same,  as  nearly  as  may  be, 
as  upon  writ  of  sci.  fa.  • 

§  23. — Payment  made  by  an  execution  levied  upon  the  garnishee  under  any  such 
proceeding  as  aforesaid  shall  be  a  valid  discharge  to  him  as  against  the  judgment 
debtor  to  the  amount  paid  or  levied,  although  such  proceeding  may  be  set  aside  or- 
the  judgment  reversed. 


Attachment  against  administrator — Chap.  2,  sec.  90,  p.  101. 
Exemptions — Chap.  104,  sees.  4-9  and  22-24,  p.  529,  etc. 
Before  justices  of  the  peace — Chap.  128,  sees.  18-54,  pp.  632-639. 
Against  ships— Chap.  143,  sees.  19-28,  pp.  725-727.     For  violation  of  quaraih- 
tine,  p.  854. 

On  lien  of  agricultural  laborers— Chap.  143,  sees.  30-36,  pp.  728,  729. 


478  GEORGIA. 

GEORGIA. 

[Code    of    1882.] 


OF  ISSUING  ATTACH5IEXTS. 

§  3264  (3199)  (3188). — ^Attachments  may  issue  in  the  following  cases: 

1.  When  the  debtor  resides  out  of  the  state. 

2.  When  he  is  actually  removing,  or  about  to  remove,  without  the  limits  of 
the  county. 

3.  When  he  absconds. 

4.  When  he  conceals  himself. 

5.  When  he  resists  a  legal  arrest. 

6.  WTien  he  is  causing  his  property  to  be  removed  beyond  the  limits  of  the  state. 

§  3265  (.3200)  (3189). — Before  process  of  attachment  shall  issue,  the  party  seeking 
the  same,  his  agents,  or  attomey-at-law,  shall  make  an  afBdavit  before  some  judge 
of  the  superior  coiui;,  judge  of  the  county  court,  justice  of  the  peace  or  notary 
public,  that  the  debtor  has  placed  himself  in  some  one  of  the  positions  enimierated 
in  this  code,  and  also  the  amount  of  the  debt  claimed  to  be  due.  When  the  aflB- 
davit  is  made  by  the  attorney-at-law,  or  agent  of  the  party,  he  may  swear  that 
the  amount  claimed  to  be  due  is  due,  according  to  the  best  of  his  knowledge  and 
belief. 

§  3266  (3201)  (3190). — The  party  seeking  the  attachment,  before  the  same  issues, 
shall  also  give  bond,  with  good  seciu-ity,  in  an  amount  at  least  double  the  debt 
sworn  to,  payable  to  the  defendant  in  attachment,  conditioned  to  pay  such  defend- 
ant all  damages  that  he  may  sustain,  and  also  all  costs  that  may  be  incurred  by 
him  in  consequence  of  suing  out  the  attachment,  in  the  event  the  plaintiff  shall  fall 
to  recover  in  said  case;  which  bond  it  shall  be  the  duty  of  the  magistrate  or  other 
officer  before  whom  the  affidavit  is  made  to  take,  and  where  the  affidavit  is  made 
by  the  agent  or  attomey-at-law  of  the  plaintiff,  such  agent  or  attorney-at-law  is 
hereby  authorized  to  sign  the  name  of  the  principal,  who  shall  also  be  bound 
thereby  in  the  same  manner  as  though  he  had  signed  it  himself. 

§  3207  (3202)  (3191).— When  the  debt,  for  the  recovery  of  which  the  attachment 
is  sought,  is  due  to  a  copartnership,  or  is  due  to  several  persons  jointly,  it  shall  be 
lawful  for  any  one  of  the  copartners  or  joint  creditors,  his  agent  or  attomey-at- 
law,  to  make  the  affidavit,  and  give  the  bond  as  prescribed  by  this  code,  and  to 
sign  the  name  of  the  other  copartners  or  joint  creditors  to  said  bond,  and  they 
shall  be  bound  thereby  in  the  same  manner  as  though  they  had  signed  it 
themselves. 

§  3268. — No  person  shall  be  taken  as  security  on  any  attachment  or  garnish- 
ment bond  who  is  an  attorney  for  the  plaintiff,  or  a  non-resident  of  this  state,  ex- 
cept such  non-resident  is  possessed  of  real  estate  in  the  county  where  the  attachment 
or  garnishment  issue,  of  the  value  of  the  amount  of  such  bond. 

§  3269  (3203)  (3192). — Affidavit  being  thus  made  and  bond  given,  it  shall  be  the 
duty  of  the  officer  before  whom  such  affidavit  is  made  and  bond  given,  or  any  offi- 
cer authorized  so  to  do,  to  issue  an  attachment  against  the  defendant,  which  may 
be  levied  on  the  property  of  the  defendant,  both  real  and  personal,  if  to  be  foimd 

in  this  state. 

§  3270  (3204)  (3193).— When  the  plaintiff  in  attachment  wishes  to  levy  his  at- 
tachment upon  property  in  a  different  county  from  that  in  which  the  same  is 
returnable,  it  shall  be  the  duty  of  the  magistrate,  or  other  officer  issuing  such  at- 
tachment, upon  the  request  of  the  jjlaintiff,  his  agent  or  attomey-at-law,  to  make 
out  a  copy  or  cof>ies  of  the  original  attachment,  bond  and  affida-s'it,  and  certify  the 
same,  officially,  to  be  a  true  copy  or  copies;  and  upon  such  copies  being  delivered 
to  any  officer  to  whom  the  same  is  directed,  of  the  county  where  the  property  of 
the  defendant  is,  it  shall  be  the  duty  of  such  officer  to  levy,  forthwith,  the  same 
upon  the  property  of  the  defendant  in  such  county,  and  to  return  the  same,  with 
his  actings  and  doings  entered  thereon,  to  the  court  to  which  tl^e  original  attach- 
ment is  returnable. 


GEORGIA.  479 

§  3271. — When  any  attachment  shall  be  issued  and  levied  upon  the  property  of 

the  defendant,  it  shall  be  lawful  for  the  defendant,  his  agent  or  attorney,  to  file 
his  affidavit  that  he  has  a  good  defense  to  the  action,  and  that  the  bond  given  in 
such  attachment  is  not  a  good  bond,  and  the  ground  of  its  insufficiency;  and  when 
such  affidavit  is  made  and  delivered  to  the  levying  officer,  it  shall  be  the  duty  of 
such  officer  to  return  such  attachment,  together  with  the  affidavit,  forthwith  to 
the  officer  issuing  the  same,  and  the  officer  issuing  the  attachment  shall,  without 
delay,  hear  testimony  as  to  the  sufficiency  of  said  bond,  and  such  officer  may,  in 
his  discretion,  require  additional  security  or  a  new  bond,  to  be  given  within  tha 
time  prescribed  by  the  officer,  and  in  default  thereof,  the  levying  officer  shall  dis- 
miss the  levy  made  \m.der  said  attachment. 

§  3272  (320.5^  (3194).— When  the  amount  sworn  to  shall  exceed  the  sum  of  one 
hundred  dollars,  the  attachment  shall  be  made  returnable  to  the  next  term  of  tha 
superior  or  county  court  of  the  county  where  the  defendant  resides,  or  where  he 
last  resided;  but  if  such  superior  court  shall  sit  within  twenty  days,  or  such  coimty 
court  shall  sit  within  fifteen  days  next  after  issuing  such  attachment,  it  shall  be 
made  returnable  to  the  next  term  of  the  superior  or  county  court  thereafter;  and 
when  the  debt  sworn  to  does  not  exceed  the  sum  of  one  hundred  dollars,  the  at- 
tachment shall  be  made  returnable  to  the  next  justice's  com-t  of  the  district  in 
which  the  debtor  resides,  or  last  re.sided;  but  if  the  next  justice's  court  shall  sit 
within  ten  days  next  after  issuing  such  attachment,  it  shall  be  made  returnalile  to 
the  next  justice's  court  thereafter,  except  when  the  defendant  resides  out  of  tha 
state;  and,  in  that  case,  if  the  debt  sworn  to  exceeds  one  hundred  dollars,  the  at- 
tachment may  be  made  returnable  to  the  sujierior  court  of  any  county  in  this 
state;  and  if  it  does  not  exceed  one  hundred  dollars,  the  attachment  may  be  made 
returnable  to  a  justice's  court  of  any  district  of  any  county  in  this  state. 

§  3273  (320G)  (3195). — Attachment  returnable  to  the  superior  and  county  courts 
shall  be  directed  to  all  and  singular  the  sheriffs  and  constables  of  this  state,  and 
attachments  returnable  to  the  justices'  courts  shall  be  directed  to  aU  and  singular 
the  constables  of  this  state. 

§  3274  (3207)  (3196). — Attachments  may  issue  and  be  levied  on  Sunday  when  the 
plaintiff,  his  agent,  or  attorney-at-law  shall  swear,  in  addition  to  the  oatli  pre- 
scribed by  this  code,  that  he  has  reason  to  apprehend  the  loss  of  the  debt,  unless 
process  of  attachment  do  issue  on  Sunday,  and  shall  also  comply  with  the  other 
provisions  of  this  code  in  relation  to  issuing  attachments. 

§  3275  (3208)  (3197).— When  the  debt  is  not  due,  the  debtor  shall  be  subject  to 
attachment  in  the  same  manner  and  to  the  same  extent  as  in  cases  where  the  debt 
is  due,  except  that  where  the  debt  does  not  become  due  before  final  judgment, 
execution  upon  the  judgment  shall  be  stayed  until  the  debt  is  due. 

§  327G  (3209)  (3198). — In  cases  of  joint  contractors  and  copartners,  where  any 
one  of  them  shall  render  himself  liable  to  attachment  according  to  law,  an  attach- 
ment may  issue  against  him  upon  the  plaintiff,  his  agent,  or  attorney  at  law  com- 
plying with  the  previous  provisions  of  this  code  in  relation  to  the  issuing  of  attach- 
ments; and  the  proceedings  against  such  joint  contractors  or  copartner  shall  be  in 
all  respects  as  in  other  cases  of  attachments,  except  that  such  attachment  shall  be 
levied  oidy  upon  the  separate  property  of  such  joint  contractor  or  copartner. 

§  3277  (3210)  (3199). — Process  of  attachment  may  issue  against  an  administrator 
on  an  estate,  or  the  executor  of  the  last  will  and  testament  of  any  deceased  person, 
as  in  other  cases,  when  such  administrator  or  executor  shall  be  actually  removing, 
or  about  to  remove,  the  property  of  said  deceased  person  without  the  limits  of  any 
county  of  this  state:  Provided,  final  judgment  shaU  not  be  entered  up  against  such 
administrator  or  executor  until  after  the  expiration  of  two  years  from  the  granting 
of  letters  of  administration,  or  letters  testamentary,  as  the  case  may  be. 

§  3278  (3210)  (3199). — In  all  cases  of  money  demands,  whether  arising  ex  con- 
tractu or  ex,  delicto,  plaintiff  shall  have  the  right  to  sue  out  the  attachment  when 
the  defendant  shall  have  placed  himself  in  such  situation  as  will  authorize  a  plaint- 
iff to  sue  out  attachment  upon  the  plaiatifE's  complying  with  the  law  now  of  force 
in  relation  to  issuing  attachments. 

§  3279  (.3211)  (3200).— In  all  cases  where  a  person  is  surety  or  indorser  upon  an 
instrument  of  writing,  and  the  principal  .shall  become  subject  to  attachment,  ac- 
cording to  the  provisions  of  section  3264  of  this  code,  it  shall  be  lawful  for  such 
surety  or  indorser,  upon  complying  with  the  provisions  of  this  code  in  relation  to 
the  issuing  of  attachments,  to  have  attachment  against  his  principal;  and  the  pro- 
ceedings shall  be,  in  all  respects,  the  same  as  in  other  cases  of  attachment,  acci)rd- 
ing  to  the  provisions  of  this  code,  and  the  money  raised  by  such  attachments  shall 


480  GEORGIA. 

be  paid  to  the  person  holdin.i?  such  instrument  of  writing.  But  if  the  surety  or 
indorser  has  paid  the  debt,  then  the  money  raised  upon  such  attachment,  or  so 
much  thereof  as  will  jiay  the  amount  the  surety  or  indorser  has  paid,  shall  be  paid 
to  such  surety  or  indorser;  and  in  case  the  debt  is  not  due  at  the  time  judgment  is 
rendered  against  the  principal,  execution  shall  be  stayed  until  the  debt  is  due. 

§  3280  (3212)  (3201). — In  all  cases  where  the  plaintiff  has  commenced  suit  for 
the  recovery  of  a  debt,  and  the  defendant,  during  the  pendency  of  such  suit,  shall 
become  subject  to  attachment,  agreeable  to  section  32(34  of  this  code,  the  plaintiff, 
upon  complying  with  the  provisions  of  this  code  in  relation  to  the  issuing  of  attach- 
ments, may  have  an  attachment  against  the  defendant,  and  all  the  proceedings  in 
relation  to  the  same  shall  be  as  hereinbefore  prescribed  in  relation  to  attachments 
where  no  suit  is  pending.  And  a  satisfaction  of  the  judgment  in  the  common-law 
action  shall  satisfy  the  judgment  in  attachment,  and  a  satisfaction  of  the  judgment 
in  attachment  shall  satisfy  the  judgment  in  the  common-law  action. 

§.3281(3213)  (3202). — Attachments  may  issue  against  incorporations  not  incor- 
porated by  the  laws  of  this  state,  who  are  transacting  business  within  the  state, 
under  the  same  rules  and  regulations  as  are  by  this  code  prescribed  in  relation  to 
issuing  attachments  and  garnishments  in  other  cases. 

§  (3214). — Repealed  by  constitution  of  1868,  article  I,  sec.  18. 

§  3282  (321.5)  (3204). — A  substantial  compliance  in  aU  matters  of  form  shall  be 
held  sufficient  in  all  applications  for  attachment,  and  in  all  attachments  issued  as 
pro\'ided  by  this  code. 

§  32S3  (3216)  (3205).— In  all  cases  of  attachment,  the  form  of  the  affidavit,  bond 
and  attachment  may  be  as  follows : 

AFFIDAVIT. 

Georgia, County. 

Before  me,  the  subscriber,  a in  and  for  said  county, personally 

and  on  oath  says  that is  indebted  to  him  in  the  sum  of ,  and 

that  the  said . 


Sworn  to  before  me, ,  this  the day  of ,  18 — . 

BOXD. 

Georgia, County. 

We, ,  principal,  and ,  seciu-ity,  acknowledge  ourselves  bound  unto 

in  the  sum  of dollars,  subject  to  the  follo%\dng  conditions: 

That  the  said ,  principal,  is  seeking  an  attachment  against  the  said , 

which  is  now  about  to  be  sued  out,  returnable  to  the term  of  the 


court  of  the  county  aforesaid;  now,  if  the  said shall  pay  all  damages  that 

the  said may  sustain,  and  also  all  costs  that  may  be  incmred  bj^  him  in 

consequence  of  suing  out  such  attachment,  in  the  event  that  the  said shall 

fail  to  recover  in  said  case,  then  this  bond  to  be  void. 

Executed  in  presence  of ,  this day  of ,  18 — . 


[L.  S.] 
.      [L.S.J 

attachment. 

Georgia, County. 

To  all  and  singular  the  sheriffs  and  constables  of  said  state: 
You  are  hereby  commanded  to  attach  and  seize  so  much  of  the  property  of 

■ as  will  make  the  sum  of dollars  and  all  costs,  and  also  to  serve  such 

summons  and  garnishment  as  may  be  placed  in  your  hands,  and  that  you  make 
retm-n  of  this  attachment,  with  your  actings  and  doings  entered  thereon,  to  the 

■ term  of  the coiu-t  of  said  coimty,  to  which  court  this  attachment  is 

hereby  made  returnable.     Hereof  fail  not. 

Witness  my  hand  and  seal, ,  this  the day  of ,  18 — . 

.     [l.  8.] 

IN    WHAT    MANNER,   ON  WHAT    PROPERTY    EXECUTED,   AND    PBOCEEDINGS    THEREIN. 

§  3284  (3217)  (3206).— It  shall  be  the  duty  of  any  one  of  the  officers  to  whom  an 
attachment  may  be  directed,  as  provided  in  section  3273,  article  I,  to  leyj'  the 
Bame  upon  the  property  of  the  defendant  that  may  be  found  in  the  county  of  which 
he  is  sheriff,  or  constable;  and  when  any  attachment  shall  come  into  the  hands  of 
any  officer  of  the  county  in  which  such  attachment  is  returnable,  and  the  defend- 
ant shall  have  removed  his  projjcrty  t.yonJ  the  limits  of  said  county  before  such 
an  attachment  is  executed,  it  shall  be  the  duty  of  the  officer  having  such  attach- 


GEORGIA.  481 

ment  to  follow  such  property  into  any  county  in  the  state  and  levy  the  same,  and 
briny  the  property  back  into  the  county  where  the  attachment  is  returnable. 

§  3285  (3218)  (3207).— It  shall  be  the  duty  of  the  officer  levying  such  attachment 
to  return  the  same,  with  his  actings  and  doings  entered  thereon,  together  with  the 
affidavit  and  bond,  to  the  court  to  which  the  same  is  made  returnable. 

§  3286  (3219)  (3208).— In  all  cases  it  shall  be  the  duty  of  the  officer  levying  at- 
tachments to  levy  them  in  the  order  in  which  they  came  in  his  hands,  and  it  shall 
be  his  duty  to  enter  upon  the  same  the  year,  month,  day  of  the  month,  and  hour 
of  the  day  on  which  he  made  the  levy. 

§  3287  (3220)  (3200).— When  an  attachment  has  been  issued  by  the  proper  offi- 
cer, the  same  may  be  levied  upon  the  property  of  the  defendant,  both  real  and 
personal,  which  may  be  found  in  the  county. 

§  3288  (.3221)  (3210).— Service  of  the  attachment,  by  serving  process  of  garnish- 
ment, shall  be  as  effectual  for  all  purposes  as  though  the  attachment  had  been 
served  by  levying  the  same  upon  the  property  of  the  defendant. 

§  3289  (3222)  (3211). — When  the  process  of  attachment  shall  issue  against  a 
party  who  shall  have  or  own  any  interest,  or  an  amount  of  shares,  in  any  cori^ora- 
tion  in  this  state,  the  same  may  be  attached  in  the  following  manner:  The 
officer  in  whose  hands  the  attachment  is  placed  shall  indorse  an  entry  thereon 
of  his  levy  on  the  corjiorate  shares  or  interest  of  the  defendant,  and  sht,ll 
forthwith  serve  a  copj^  of  the  attachment  so  indorsed  upon  the  president  of 
the  corporation,  at  the  office  of  the  company,  or  by  leaving  the  same  at 
the  usual  or  most  notorious  place  of  doing  the  business  of  such  companj-,  which 
entry  and  service  shall  amount  to  and  be  considered  a  seizm-e  of  said  corporate 
interest  or  shares,  to  all  intents  and  purposes,  and  under  an  execution  issued  on 
such  attachment  may  be  sold  as  in  other  cases  of  ordinary  execution. 

§  3290  (3223)  (3212).— Any  transfer  by  the  defendant  of  the  stock  or  interest  so 
attached  after  the  levy  of  such  attachment,  shall  be  void,  and  when  an  execution 
is  issued,  the  said  stock  or  interest  shall  be  sold  by  the  sheriff,  or  his  deputy,  ac- 
cording to  the  provisions  of  this  code,  to  make  bank  and  other  stocks  subject  to 
executions. 

§3291  (.3224)  (3213). —Certificates  of  purchase  shall  be  granted  by  the  officer 
selling  as  prescribed  in  cases  of  executions,  and  on  presentation  of  such  certificates 
to  the  proper  officer  of  said  corporation,  it  shall  be  his  duty  to  make  such  transfer, 
on  his  books,  if  necessary,  and  afford  the  f)urchaser  such  evidence  of  title  to  the 
stock  purchased,  as  is  usual  and  necessary  with  other  stockholders. 

§  3292  (322.5)  (3214). — In  all  cases  of  sale  of  lands,  where  the  vendor  has  not 
executed  a  deed  of  conveyance  to  the  jjurchaser  for  the  same,  but  has  given  bond 
for  titles,  or  other  evidence  of  the  contract,  and  the  purchase-money  has  not  been 
paid,  and  the  vendee  shall  become  liable  to  attachment  agreeable  to  the  provisions 
of  section  3264  of  this  code,  attachment  may  issue  against  him  at  the  instance  of 
the  vendor,  upon  complying  with  the  provisions  of  this  code  in  relation  to  attach- 
ments; which  said  attachment  shall  be  levied  upon  the  land  described  in  the  lx)nd, 
or  other  evidence  of  contract  for  titles,  and  the  subsequent  proceedings  shall  be, 
in  all  respects,  as  heretofore  prescribed  in  this  code  in  relation  to  attachments; 
and  it  shall  be  lawful  for  the  party  bound  by  such  bond,  or  other  contract  for 
titles,  to  file  in  the  clerk's  office  of  the  superior  court  of  the  county  where  the  land 
is  situated,  a  good  and  sufficient  deed  of  conveyance  of  said  land  to  the  obligee  of 
said  bond  or  other  contract  for  titles;  and  when  judgment  is  obtained  upon  such 
attachment,  the  execution  issuing  thereon  may  be  levied  upon  said  land,  and  the 
same  be  sold,  and  the  money  arising  from  said  sale  shall  be  appropriated  to  the  pay- 
ment of  said  judgment  on  the  attachment,  to  the  exclusion  of  any  other  attach- 
ment, judgment  or  other  debt  of  the  defendant. 

ATTACHMENTS  FOR  PURCHASE-MONET. 

§  3293. — Process  of  attachment  may  issue  in  behalf  of  any  creditor  whose  debt 
L9  created  by  the  purchase  of  property,  upon  such  debt  becoming  due,  when  the 
debtor  who  created  such  debt  is  in  the  possession  of  the  property  for  the  pm-chase 
of  which  the  debt  was  created,  or  where  said  property  is  in  the  possession  of  any 
one  holding  the  same  for  the  benefit  of  said  debtor,  or  in  fraud  against  such  cred- 
itor; and  judgments  on  such  attachments  shall  take  rank  from  the. date  of  the  levy 
of  the  attachment. 

§.3294. — Before  process  of  attachment  shall  issue,  under  the  preceding  section, 
the  party  seeking  the  attachment,  his  agent  or  attorney-at-law,  shall  make  affidavit 
11  Attachment— 6. 


482  GEORGIA. 

s 

before  some  person  authorized  by  law  to  issue  attachments,  that  the  debtor  liaa 
placed  himself  in  the  po-sitiou  mentioned  in  said  section,  and  also  the  amount  of 
the  debt  claimed  to  be  due;  and  shall  also  describe  in  the  affidavit  tha  property  for 
which  the  debt  was  created,  ^\^len  the  affidavit  is  made  by  the  agent  or  attomey- 
atdaw,  he  may  swear  that  the  amoimt  claimed  to  be  due  is  due,  according  to  the 
best  of  his  knowledge  and  belief.  The  officer  issuing  the  attachment,  before  issu- 
ing the  same,  shall  take  from  the  party  seeking  the  attachment  a  bond  in  double 
the  amount  claimed  to  be  due,  conditioned  and  made  payable  as  attachment  bonds 
are,  by  the  provisions  of  this  code,  requu-ed  to  be  conditioned  and  made  payable. 

§  3295. — Affidavit  being  thus  made  and  bond  given,  it  shall  be  the  duty  of  the 
ofl&cer  before  whom  such  affidavit  is  made  to  issue  an  attachment  against  the  de- 
fendant, which  shall  be  levied  onhj  on  the  property  described  in  said  affidavit,  by 
the  officer  to  whom  the  attachment  is  directed. 

§  3296.  — So  much  of  the  law  of  this  code  as  regulates  the  proceedings  in  relation 
to  remedy  by  attachment,  as  is  not  in  conflict  with  the  three  preceding  sections, 
shall  apply  to  and  control  proceedings  under  this  article. 

ATTACH1IENT.S  AGAINST   FRAUDULENT   DEBTORS. 

§  3297. — Whenever  a  debtor  shall  sell,  or  convey,  or  conceal  his  property  liable 
for  the  payment  of  his  debts,  for  the  purpose  of  avoiding  the  payment  of  the  same, 
or  whenever  a  debtor  shall  threaten  or  prepare  so  to  do,  his  creditors  may  petition 
the  judge  of  the  superior  com't  of  the  circuit  where  such  debtor  resides,  if  qualified 
to  act,  and  if  not,  the  judge  of  any  adjoining  circuit,  fully  and  distinctly  stating 
his  grounds  of  complaint  against  such  debtor,  and  jiraying  for  an  attachment 
against  the  property  of  such  debtor  liable  to  attachment,  supporting  his  petition 
by  affidavit,  or  testimony,  if  he  can  control  the  same. 

§  3297  (a). — ^Whenever  any  person  shall  make  a  fraudulent  lien  on  his  property, 
he  shall  be  subject  to  the  provisions  of  the  laws  now  in  force,  relative  to  fraudulent 
debtors,  and  in  all  cases  where  an  attachment  is  sought  against  the  fraudulent 
debtor,  the  officer  issuing  the  same  shall  require  bond  and  security  of  the  applicant 
for  attachment,  as  in  other  cases  of  attachment. 

§  3298. — Such  judge  may  then  grant  an  attachment,  to  be  issued  in  the  usual 
form,  and  directed  as  usual,  and  wliich  shall  be  executed  as  existing  laws  provide, 
and  subject  to  existing  laws  as  to  traverse,  reple^'y,  demurrer,  and  other  modes  of 
defense;  or  such  judge  may,  if  he  deem  it  more  proper  under  the  circumstances  of 
the  case  as  presented  to  him,  before  granting  such  attachment,  appoint  a  day  on 
which  he  shall  hear  the  petitioner,  and  the  party  against  whom  an  attachment  la 
jjraj'ed  (providing  in  his  order  for  due  notice  to  said  party),  as  to  the  propriety  of 
granting  such  attachment,  and,  if  satisfied  upon  such  hearing  that  such  attach- 
ment should  not  issue,  he  shall  not  grant  the  same;  but  if  satisfied  that  the  same 
should  is.sue,  he  shall  grant  an  attachment,  to  be  governed  and  regulated  as  herein 
provided  for  attachments  to  be  issued  when  no  hearing  is  had. 

§  3299. — If  the  i:)arty  whose  property  has  been  attached  without  a  hearing,  as 
provided  in  the  preceding  section,  desires  so  to  do,  he  may  apply  to  said  judge, 
stating  fully  and  distinctly  the  groimds  of  his  defense,  showing  why  such  attach- 
ment should  not  have  been  issued,  or  should  be  removed,  supporting  the  same  by 
affidavit,  or  such  other  testimony,  by  affidavit  or  otherwise,  as  he  can  control; 
such  judge  shall  then  appoint  a  time  and  place  forbearing  both  parties,  jolaintiff 
and  defendant,  providing  for  due  notice  to  all  persons  interested,  allo^vdng  them 
full  opportunity  to  sustain  their  respective  cases,  as  in  apjalication  upon  injunc- 
tion, and  may  then,  upon  a  review  of  the  law  and  the  facts  of  the  case,  make  such 
order  in  the  premises  as  is  consistent  with  justice,  either  totally  or  partially  remov- 
ing such  attachment,  or  whollj'  or  partially  retaining  the  same,  or  disposing  of  the 
same  in  some  manner  which  would  be  equitable  and  just  to  all  parties. 

§  3300. — Such  attachments,  when  issued  and  served,  shall  be  returned  and  dis- 
posed of  as  attachments  are  now  returned  and  disposed  of,  and  be  subject  to  the 
same  defenses,  and  may  be  taken  out,  upon  the  affidavit  of  the  agent  or  attorney 
of  the  creditor,  if  he  can,  by  his  own  oath,  make  out  a  case  which  wiU  satisfy 
said  judge. 

§  3301. — The  decision  of  the  judge  granting  or  refusing  an  attachment  under 
the  provisions  of  this  article  may  be  excepted  to  and  carried  to  the  supreme  court, 
as  was  practiced  in  applications  for  injunction  prior  to  28th  October,  1870. 

PROCEEDINGS   ON  GARNISHMENTS. 

§  3302  (3226)  (3215).— In  all  cases  where  attachment  may  issue,  it  shall  be  the 
duty  of  the  magistrate,  or  other  officer  issuing  the  same,  at  the  request  of  the 


GEORGIA.  483 

plaintiff,  his  a?ent  or  attomey-at-la-w,  to  issue  summons  of  garnishment,  directed 
to  any  person  that  may  be  indebted  to,  or  have  property  or  effects  of  the  defend- 
ant in  their  hands,  requiring-  them  to  appear  at  the  court  to  which  the  attachment 
is  made  retumabk^  then  and  there  to  depose  on  oath  what  they  were  indebted  to 
the  defendant  at  the  time  of  the  service  of  said  pramishment,  or  what  property  or 
effects  of  his  they  have  in  their  hands,  or  had  at  the  time  of  the  service  of  said 
summons  of  garnishment;  and  it  shall  be  the  duty  of  the  officer  levying  such  at- 
tachment to  serve  such  summons  of  garnishment. 

§  3303  (3227)  (3216).— When  the  plaintiff,  his  agent  or  attorney-at-law,  shall  de- 
sire to  garnishee  persons  not  residing  in  the  county  in  which  the  attachment 
issues,  it  shall  be  the  duty  of  the  magistrate  issuing  the  same,  at  the  request  of  the 
plaintiff,  his  agent  or  attorney-at-law,  to  make  out  a  copy  of  the  affidavit,  bond 
and  attachment,  and  certify  the  same  to  be  a  true  copy;  and  upon  the  delivery  of 
such  copy  to  an.-^  magistrate,  or  other  officer  who  is  authorized  by  law  to  issue  an 
attachment,  in  the  county  in  which  the  person  sought  to  be  garnished  resides,  it 
shall  lie  the  duty  of  such  magistrate,  or  other  officer,  to  make  out  a  summons  of 
garnishment  for  such  persons  as  he  may  be  requested  to  do  by  the  plaintiff,  his 
agent  or  attorney-at-law,  requiring  such  persons  to  be  and  appear  at  the  next  su- 
perior, or  county  court,  or  justice's  court  of  the  county  in  which  it  issued,  and 
depose  in  the  manner  prescribed  by  law;  but  if  the  next  court,  as  aforesaid,  shall 
be  held  within  less  than  ten  days  next  after  the  issuing  of  said  summons  of  gar- 
nishment, then  the  person  garnished  shall  be  required  to  appear  and  depose  at  the 
next  court  thereafter;  which  said  summons  may  be  served  by  any  officer  authorized  by 
law  to  levy  an  attachment,  who  shall  return  such  certified  copy,  affidavit,  bond 
and  attachment,  to  the  court  as  aforesaid,  together  with  his  actings  and  doings  en- 
tered thereon. 

§  3304  (3228)  (3217).— When  any  person  summoned  as  garnishee  fails  to  appear, 
in  obedience  to  the  summons,  and  answer  at  the  first  term  of  th»  court  at  which 
he  is  required  to  appear,  the  case  shall  stand  continued  imtil  the  next  term  of  the 
court;  and  if  he  should  fail  to  appear  and  answer  by  said  next  term,  the  plaintiff 
may,  on  motion,  have  judgment  against  him  for  the  amount  of  the  judg-ment  he 
may  have  obtained  against  the  defendant  in  attachment,  or  so  much  thereof  as 
shall  remain  unpaid  at  the  time  the  judgment  is  rendered  against  the  garnishee; 
and  the  court  may  continue  the  case  until  final  judgment  is  rendered  against  the 
defendant  in  attachment. 

§  3305  (3229)  (3218).— Wlien  the  garnishee  appears  and  answers  that  he  is  in- 
debted to,  or  has  property  or  effects  in  his  hands  belonging  to,  the  defendant  in 
attachment,  judgment  shall  be  rendered  against  him  in  favor  of  the  plaintiff  for 
such  acknowledged  indebtedness,  and  the  jDroperty  and  effects,  whatever  they  may 
be,  .shall  be  delivered  into  the  hands  of  the  sheriff  or  constable,  as  the  case  may 
be,  and  by  order  of  the  court  shall  be  by  him  sold,  and  the  money  arising  from  such 
sale  shall  be  held  subject  to  the  order  of  the  court,  and  in  case  the  garnishee  fails 
to  deliver  over  such  property  or  effects  to  the  officer  as  aforesaid,  it  shall  be  lawful 
for  the  court  to  attach  him  as  for  contempt;  the  property  and  effects  so  surrendered 
and  delivered  into  the  hands  of  the  officer,  as  aforesaid,  shall  be  sold  at  such  time 
and  place,  and  after  such  notice  given,  as  the  court  ordering  the  same  shall  dh-ect. 

§  3306  (3230)  (3219). — When  the  summons  of  garnishment  is  returnable  to  the 
superior  or  county  court,  and  the  plaintiff  in  attachment  is  not  content  with  the 
answer  of  the  garnishee,  he  may  at  the  term  of  the  court  to  which  the  return  is 
made,  traverse  the  same,  and  the  issue  formed  upon  such  traverse  shall  be  tried  at 
the  same  term  by  a  petit  jmy,  unless  cause  is  shown  for  a  continuance.  On  the 
trial  of  said  issue,  it  shall  be  competent  for  the  plaintiff  to  show  the  amount  of 
indebtedness  of  the  garnishee,  and  the  value  of  the  property  and  effects  not  sur- 
rendered as  aforesaid;  and  upon  final  judgment  being  rendered  against  said  gar- 
nishee, the  plaintiff  in  attachment  shall  have  execution  for  the  amount  of  such 
judgment  and  cost  as  at  common  law. 

§  3307  (3231)  (3220). — When  the  summons  of  garnishment  is  returnable  to  a 
justice's  court,  the  issue  formed  upon  the  traverse  as  aforesaid  shall  be  tried  by 
the  justice  of  the  peace,  with  the  right  of  appeal  according  to  the  law  governing 
appeals  from  justices'  courts. 

OP  PLEADING  AND  DEFENSES. 

§  3308  (.3232)  (3221).— When  the  attachment  has  been  returned  to  the  proper 
court,  the  subseciuent  i>roceedings  shall  be  in  all  respects  the  same  as  in  cases  where 
there  is  personal  service,  and  when  the  attachment  is  returnable  to  the  superior  or 
county  court,  the  plaintiff  shaJl  file  his  declaration  at  the  first  term. 


484  GEORGIA. 

§  3309  (3233)  (3222).— The  plaintiff,  his  agent  or  attomey-at-law,  may  .cive  no- 
tice iu  writing-  to  the  defendant  of  the  pendency  of  such  attachment  and  of  the 
proceedings  thereon,  which  shall  be  served  personally  on  the  defendant  by  the 
sheriff,  his  deputy,  or  a  constable  of  the  county  to  which  said  attachment  is  re- 
turnable, by  giving  him  a  copy  of  said  notice,  at  least  ten  days  before  final  judg- 
ment on  said  attachment,  and  returning  said  original  notice  with  his  service  entered 
t!iereon  to  the  court  in  which  said  attachment  is  pending,  which  being  done,  the 
judgment  rendered  upon  such  attaclmient  shall  have  the  same  force  and  effect  as 
judgments  rendered  at  common  law;  and  no  declaration  shall  be  dismissed  because 
the  attachment  may  have  been  dismissed  or  discontinued,  but  the  plaintiff  shall 
be  entitled  to  j  udgment  on  the  declaration  filed,  as  in  other  cases  at  common  law, 
upon  the  merits  of  the  case. 

§  3310  (3234)  (3223).— The  defendant  may  appear  by  himself  or  attorney-at-law, 
and  make  his  defense  at  any  time  before  final  judgment  is  rendered  against  him. 

§  3311  (3235)  (3224). — Any  defendant  against  whom  an  attachment  may  issue 
for  the  recovery  of  a  demand  which  is  not  due,  under  the  provisions  of  section 
3275,  article  I,  may  avail  himself  in  his  defense  of  any  set-off  pleadable  by  the 
laws  of  this  state,  notwithstanding  such  set-oif  may  not  be  due  at  the  time  of  suing 
out  such  attachment,  or  at  the  trial  thereof;  and  if  said  set-off,  so  pleaded,  shall 
exceed  the  plaintiff's  demand,  the  defendant  shall  ha  e  judgment  against  the 
plaintiff  for  such  excess  as  at  common  law,  with  a  stay  of  execution  until  the  time 
the  said  set-off  so  pleaded  shall  become  due. 

§  3312  (3236)  (3225). — In  all  cases  of  attachment  the  defendant  may  traverse 
the  truth  of  the  affidavit  in  relation  to  the  ground  upon  which  the  attachment 
issued  at  the  return  of  the  attachment,  and  if  said  attachment  is  returnable  to  the 
superior  court,  the  issue  formed  upon  such  traverse  shall  be  tried  by  a  iuiy  at  the 
same  term,  unless  good  cause  is  shown  for  a  continuance;  and  if  the  final  verdict 
upon  such  issue  shall  be  in  favor  of  the  defendant,  said  attachment  shall  be  dis- 
missed at  the  cost  of  the  plaintiff.  And  if  the  attachment  is  retiurnable  to  a  jus- 
tice court,  the  issue  formed  upon  the  traverse  aforesaid  shall  be  tried  by  the  justice 
of  the  peace,  with  the  right  of  api^eal,  according  to  the  law  regulating  appeals 
from  justices'  courts. 

§  3313  (3237)  (3223).— No  traverse  of  the  plaintiff's  attachment,  affidavit,  or 
other  proceeding  of  the  attachment  shall  delay  judgment  on  the  declaration  where 
personal  service  has  been  perfected,  but  judgment  may  be  had  thereon,  subject  to 
the  rules  of  the  common  law,  as  well  before  the  trial  of  the  issue  made  on  the 
attachment  proceedings  as  afterward. 

§  3314  (3238)  (3227). — In  case  either  plaintiff  or  defendant  shall  die  before  final 
judgment  is  rendered  in  any  case,  and  there  is  representation  upon  the  estate  of 
the  defendant,  jjarties  shall  be  made  in  the  same  manner  as  in  cases  where  there  is 
l^ersonal  service.  Biit  if  there  is  no  kno-\\-n  representation  upon  the  estate  of  the 
defendant  within  this  state,  and  the  plaintiff  shall  die,  his  executor  or  adminis- 
trator may,  at  any  time  after  his  qualification  as  such,  cause  to  be  issued  by  the 
clerk  of  the  court,  or  justice  of  the  peace,  a  scire  facias,  returnable  to  the  next  term 
of  the  court  after  issuing  the  same,  giving  notice  to  the  opposite  party  of  his  inten- 
tion to  be  made  a  party  in  i)lace  of  his  deceased  testator  or  intestate,  which  shall 
be  i^osted  up  at  the  door  of  the  court-house  where  such  attachment  is  pending  at 
least  twenty  days  before  the  term  at  which  such  scire  facias  is  made  returnable; 
imd  upon  affidavit  being  made  by  the  executor  or  administrator  of  this  being  done, 
and  said  affidavit  being  filed  among  the  papers  in  the  case,  said  executor  or  admin- 
istrator shall,  on  motion,  be  made  a  party,  and  the  same  proceed  in  his  name. 

§  3315  (3239)  (3228). — ^Vhen  the  defendant  shall  die,  scire  facias  shall  issue  in 
the  manner  aforesaid  after  the  expiration  of  twelve  months  from  the  death  of  the 
defendant,  directed  to  the  representative  of  the  deceased  defendant,  notifying  him 
of  the  pendency  of  such  attachment,  and  of  the  intention  of  the  plaintiff  to  proceed 
with  the  same,  which  being  posted  as  aforesaid,  and  affidavit  made  and  filed  as 
aforesaid,  it  shall  be  lawful  for  the  plaintiff  to  proceed  in  the  same  manner  as 
though  the  death  of  the  defendant  had  not  occurred;  but  the  executor  or  adminis- 
trator upon  the  estate  may,  at  any  time  before  final  judgment  upon  the  attach- 
ment, come  in  and  be  made  a  party,  and  defend  in  the  same  manner  as  his  testator 
or  intestate  might  have  done. 

§  3316  (3240)  (3229).— The  plaintiff  in  attachment  shall  have  the  right  to  amend 
his  attachment,  or  bond,  or  declaration,  as  in  other  cases  at  common  law,  and  the 
levj'ing  officer  shall  have  the  right  to  amend  his  return  by  supplying  any  omissions 
or  errors,  and  the  coxirt  before  which  the  attachment  shall  be  returned  shall  have 
power  to  order  said  amendments. 


GEORGIA.  485 

§  3317  (3241)  (3230). — A  judgment  in  attachment  may  he  set  aside  in  a  court  of 
law  upon  an  issue  suggesting  fraud  or  want  of  consideration,  tendered  by  a  judg- 
ment creditor  of  the  defendant  in  attachment. 

§  3318  (3242)  (3231). — In  cases  of  attachment  and  garnishment,  interrogatories 
may  be  sued  out  and  served  as  provided  in  other  cases. 

EEPLEVY  AND   DISPOSITION   OF   PROPERTY  ATTACHED. 

§  3319  (3243)  (3232).— When  an  attachment  has  been  levied  upon  the  property 
of  a  defendant,  it  shall  be  the  duty  of  the  officer  levying  the  same  to  deliver  the 
property  so  levied  upon  to  the  defendant,  upon  his  giving  bond,  with  good  secu- 
rity, payable  to  the  plaintiff  in  attachment,  obligating  themselves  to  pay  the 
plaintiff  the  amount  of  the  judgment  and  costs  that  he  may  recover  in  said  case: 
Prockkd,  the  i^roperty  levied  on  shall  be  equal  to,  or  exceed  in  value,  the  amount 
of  the  debt  sworn  to  be  due;  but  in  case  the  property  levied  upon  shall  be  of  less 
value  than  the  amount  of  the  debt  claimed  to  be  due,  then  the  said  bond  shall  be 
in  double  the  amount  of  the  property  levied  upon,  to  be  judged  of  by  the  levying 
ofacer;  and  the  officer  taking  said  bond  shall  return  the  same  with  said  attachment 
to  the  court  to  which  the  same  is  made  returnable,  and  it  shall  be  lawful  for  the 
plaintiff  to  take  judgment  against  the  defendant  and  his  securities  upon  said  bond 
for  the  amount  of  the  judgment  he  may  recover  in  his  said  attachment  case. 

§  3320  (3244)  (3233). — When  an  attachment  .shall  be  levied  on  the  jDroperty  of  an 
incorporation  not  incorporated  by  the  laws  of  this  state,  it  shall  be  lawful  for  any 
agent  of  such  incorporation  to  reUeve  the  jjroperty  levied  on,  or  discharge  the 
summons  of  garnishment  that  may  is.sue,  by  giving  bond  to  the  levying  officer, 
payable  to  the  plaiutiti,  conditioned  to  pay  the  amount  that  may  be  recovered  in 
said  case;  which  bond  the  lev3-ing  officer  shall  return  to  the  com-t  to  which  the 
attachment  is  made  returnable,  and  judgment  m;iy  be  entered  up  in  like  manner 
against  the  principal  and  security  uijou  said  bond  for  the  amount  the  plaintiff  may 
recover  against  such  corporation. 

§  3321  (3245  (3234). — When  the  defendant  fails  to  reple^'y  the  property,  and  the 
same  remain.i  in  the  hands  of  the  levying  officer,  and  is  of  a  perishable  nature,  or 
liable  to  deteriorate  in  value  from  keeping,  or  there  is  expense  attending  the  keep- 
ing of  the  same  (the  same  not  being  land),  uiaon  these  facts;  being  made  plainly  to 
appear  to  a  judge  of  the  sui:)erior  court,  or  county  judge  of  the  county  in  which  the 
attachment  is  returnable  (where  the  same  is  returnable  to  a  superior  or  county 
court),  or  to  a  justice  of  the  peace  of  the  county  (where  the  same  is  returnable  to  a 
justice's  court),  it  shall  be  their  duty  to  order  a  sale  of  the  property,  which  shall 
be  at  the  usual  place  of  holding  sheriff's  sales  of  the  county  where  such  i:)roperty 
may  be,  when  the  attachment  is  returnable  to  the  suj^erior  or  county  court;  and 
when  the  attachment  is  returnable  to  a  justice's  court,  at  the  usual  place  of  con- 
stable's sales  of  the  district  where  the  property  may  be,  or  at  such  other  place  as 
the  magistrate  ordering  said  sale  maj'  direct.  The  time  and  place  of  holding  such 
sale  shall  be  advertised  at  the  court-house,  and  at  two  other  public  places  in  the 
county  where  the  same  is  to  take  place,  at  least  ten  days  before  the  day  of  sale. 
And  wbcii  the  attachment  is  returnable  to  a  justice's  court,  it  shall  be  advertised 
at  the  court-house  door  of  the  district  in  which  the  attachment  is  retin-nable,  and 
the  money  ari.sing  from  such  sale  shall  be  held  by  the  officer  making  the  same, 
subject  to  the  order  of  the  com't  to  which  the  attachment  is  returnable. 

OF   CLAI3IS  AND  PROCEEDINGS  THEREIN. 

§  3322  (324G)  (3235).— When  property  shall  be  levied  on  by  vu-tue  of  an  attach- 
,  ment,  ami  the  same  is  claimed  by  any  person  not  a  party  to  such  attachment,  it 
shall  be  the  duty  of  the  jjerson  claiming  the  same,  his  agent  or  attorney-at-law,  to 
make  oath  before  some  person  authorized  by  law  to  administer  an  oath,  that  the 
jiroperty  levied  on  is  the  property  of  the  claimant,  and  is  not  subject  to  such  at- 
tachment, according  to  the  best  of  his  knowledge  and  belief;  and  said  claimant 
shall  give  bond,  with  good  security,  payable  to  the  plaintiff  in  attachment,  in  a 
sum  at  least  equal  to  double  the  value  of  the  j^roperty  claimed,  to  be  judged  of  by 
the  levying  officer,  conditioned  to  pay  the  x^laintiff  all  d.%mages  which  the  j  wrj,  on 
the  trial  of  the  right  of  property,  may  assess  against  him,  in  case  it  should  );e  made 
to  appear  that  such  claim  was  made  for  the  purpose  of  delay;  and  in  case  the  claim 
is  interposed  by  the  agent  or  attorney-at-law  of  the  claimant,  such  agent  or  attor- 
ney-at-law shall  have  power  to  sign  the  name  of  the  claimant  to  the  bond,  and  such 
claimant  shall  be  bound  in  the  same  manner  as  though  he  had  signed  it  himself. 
It  shall  be  the  duty  of  such  officer  taking  such  affidavit  and  bond  to  return  the 
same  to  the  court  to  which  the  attachment  is  returnable,  unless  the  property  levied 
on  should  be  real  estate,  in  which  case  it*  shall  be  his  duty  to  return  the  same  to 


486  GEORGIA, 

the  superior  court  of  the  county  where  the  land  lies:  Provided,  ihat  if  the  claimaHt 
is  unable  to  give  such  bond  and  security,  he  may  intei-jDose  his  claim,  as  elsewhere 
provided  in  this  code. 

§  8323  (3247)  (3236). — The  claim  shall  be  tried  in  the  same  manner  and  subject 
to  the  same  rules  and  regulations  as  are  prescribed  by  law  for  the  trial  of  other 
claims  in  the  court  to  which  it  is  returned. 

§  3324  (3248)  (3237). — The  claimant,  his  agent  or  attorney-at-law,  may  give 
bond,  with  good  security,  payable  to  the  levying  officer,  in  a  sum  equal  to  double 
the  value  of  the  property  claimed,  the  value  to  be  judged  of  by  the  levj'ing  officer, 
conditioned  to  deliver  such  property  at  the  time  and  place  of  sale,  provided  the 
same  should  be  found  subject  to  the  attachment;  and,  upon  the  delivery  of  such 
bond  to  the  levying  officer,  it  shall  be  his  duty  to  deliver  such  property  to  the 
claimant,  his  agent  or  attorney-at-law,  and  it  shall  be  the  duty  of  the  le\'ying  offi- 
cer to  return  such  bond,  together  with  the  affidavit  and  claim-bond,  to  the  court 
to  which  such  attachment  is  returnable;  and  when  said  claim  is  interposed  by  the 
agent,  or  attorney-at-law,  of  the  claimant,  such  agent  or  attorney-at-law  shall  have 
power  to  sign  the  name  of  the  claimant  to  the  bond,  who  shall  be  bound  thereby  in 
the  same  manner  as  though  he  had  signed  it  himself. 

§  3325  (3249)  (3238).— Upon  the  failure  of  the  claimant  to  deliver  such  property, 
according  to  the  conditions  of  said  bond,  the  levying  officer  may  immediately  sue 
the  claimant  and  security  upon  the  bond,  and  recover  the  full  value  of  the  prop- 
erty claimed,  and  also  all  damages,  costs  and  charges,  that  the  plaintiff  may  have 
sustained  in  consequence  of  the  failm-e  of  the  comx^lainant  to  deliver  said  property. 

§  332G  (3250)  (3239). — In  cases  where  the  claimant  shall  deliver  the  property, 
and  upon  selling  the  same  a  sufficient  amount  shall  not  be  raised  to  pay  the  debt 
and  costs  of  the  plaintiff,  it  shall  be  lawful  for  the  ijlaintifi  to  institute  suit  against 
the  claimant  and  his  securities  upon  his  said  bond,  and  to  recover  the  full  value  of 
the  hire  or  use  of  the  property  while  the  same  has  been  in  the  possession  of  the 
claimant,  and  also  full  damage ;  for  any  deterioration  of  the  value  of  the  property, 
by  use  or  otherwise,  while  the  same  has  been  in  the  possession  of  the  claimant, 
provided  such  recovery  shall  not  exceed  the  amount  of  the  debt  that  may  remain 
due  from  the  defendant  in  attachment  to  the  plaintiff.  The  remedy  provided  in 
this  section  is  and  shall  be  extended  to  all  other  claims  in  the  cases  hereia  pro- 
vided for. 

§  3327  (3251)  (3240).— In  cases  of  attachment,  a  claim  may  be  interposed  either 
before  or  after  judgment. 

OF   LIEN  OF  ATTACHMENTS,   JUDGMENT  AND   EXECUTION. 

§  8328  (3252)  (3241).— When  the  defendant  has  given  bond  and  security,  as  pro- 
vided in  section  3319  of  this  code,  or  when  he  has  appeared  and  made  defense  by 
himself  or  attorney-at-law,  or  when  he  has  been  cited  to  appear,  as  provided  in 
section  3309  of  this  code,  the  judgment  rendered  against  him  in  such  case  shall 
bind  all  his  property,  and  shall  have  the  same  force  and  effect  as  when  there  has 
been  personal  service,  and  execution  shall  issue  accordingly,  but  it  shall  be  first 
levied  upon  the  property  attached.  In  all  other  cases,  the  judgment  on  the  attach- 
ment shall  only  bind  the  property  attached,  and  the  judgment  shall  be  entered 
only  against  such  property. 

§  3329  (.3253)  (3242).— After  the  judgment  has  been  obtainedin  any  case  of  at- 
tachment, execution  shall  issue,  as  in  cases  at  common  law,  which  execution  shall 
be  levied  in  the  same  manner  as  executions  issuing  at  common  law,  and  the  pro- 
ceedings, in  all  respects,  shall  be  the  same,  except  that  when  the  judgment  only 
binds  the  property  levied  on  by  the  attachment,  as  aforesaid,  the  execution  shall 
be  issued  against  such  property  only,  and  that  property  only  shall  be  levied  on 
and  sold. 

§  3330  (3254)  (3243).— All  money  raised  by  the  sale  of  defendant's  property,  or 
otherwise,  by  virtue  of  the  provisions  of  this  code,  in  relation  to  attachments,  shall 
be  paid  over'to  the  creditors  of  the  defendant,  according  to  the  priority  of  the  lien 
of  their  judgments,  saving  only  that  as  between  attaching  creditors,  the  attach- 
ment first  levied  shall  be  first  satisfied,  to  the  entire  exclusion  of  any  attachment 
of  younger  levy. 

§  3331  (3255)  (3244).— The  lien  of  attachment  is  created  by  the  levy,  and  not 
the  judgment  on  the  attachment;  and  in  case  of  a  conflict  between  attachments, 
the  first  levied  shall  be  first  satisfied;  but  in  a  contest  between  attachments  and 
onlinary  judgments,  or  suits,  it  is  the  judgment,  and  not  the  levy,  which  fixes 
the  lien.  • 


GEORGIA.  487 

SUITS  ON  ATTACHSfENT  BONDS. 

§  3354  (3278)  (32G7). — When  a  person  who  has  been  a  defendant  in  attachment 
desires  to  sue  the  plaintiff  for  damages,  and  the  plaintiff  shall  not  reside  in  this 
state,  it  shall  be  sufficient  to  serve  a  copy  of  the  petition  and  process  on  the  secu- 
rity to  the  liond  given  by  the  plaintiff,  and  said  action  may  proceed  against  both 
principal  and  security. 

GARNISHMENT. 

§  3536  (3485)  (3465). — When  such  affidavit  has  been  made,  and  bond  given,  it 
shall  be  the  duty  of  the  officer  before  whom  the  same  is  made,  or  any  other  officer 
authorized  by  this  code,  to  issue  attachments,  to  whom  the  same  bond  and  affida- 
vit may  be  delivered,  upon  the  request  of  the  plaintiff,  his  agent  or  attorney-at- 
law,  to  issue  a  summons  of  garnishment,  directed  to  the  person  sought  to  be  "gar- 
nished, requiring  him  to  appear  at  the  next  term  of  the  court  where  such  suit  is 
pending,  or  \yhere  such  judgment  was  obtained;  but  if  the  next  superior  court  shall 
be  held  within  less  than  ten  days  from  the  time  such  summons  shall  issue,  then  the 
garnishee  shall  be  required  to  appear  at  the  next  court  thereafter,  then  and  there 
to  depose  on  oathwhat  he  is  indebted  to,  orwhat  property  and  effects  he  has  iu 
his  hands  belonging  to,  the  defendant,  or  had  at  the  time  of  the  service  of  the 
summons  of  garnishment;  and  also  what  he  has  become  indebted  to  the  defend- 
ant, or  what  property  and  effects  he  has  received  or  got  possession  of  belonging  to 
the  defendant,  between  the  time  of  the  service  of  said  summons  and  the  time  of 
making  his  return;  and  upon  such  affidavit,  bond,  and  summons  of  garnishment 
being  delivered  to  any  officer  authorized  l:)y  law  to  levy  an  attachment,  it  shall  be 
his  duty  to  serve  such  summons  of  garnishment  upon  the  person  to  whom  it  is  di- 
rected, if  to  be  found  in  his  county,  and  to  make  an  entry  of  such  service,  and  of 
his  actings  and  doings  in  the  premises  upon  the  affidavit  and  bond,  and  return  the 
same  to  the  coin-t  to  which  the  person  summoned  as  garnishee  is  required  to  ap- 
pear; and  all  subsequent  proceedings  shall  be  the  same  as  in  this  code  prescribed  in 
relation  to  garnishment  in  cases  of  attachment.  Summons  of  garnishment  may 
issue  under  the  provisions  of  this  section,  from  time  to  time,  before  trial,  without 
giving  any  additional  bond. 

§  3533  (a). — In  all  cases  of  garnishment,  whether  the  same  be  by  attachment  or 
garnishment  at  common  law,  it  shall  be  the  duty  of  the  garnishee  to  answer  what 
property,  money  or  effects  of  the  defendant  he  has  in  his  hands  at  the  date  of  the 
service  of  the  summons  of  garnishment,  and  also  what  property,  money  or  effects 
of  the  defendant  may  come  into  his  or  her  hands  at  any  time  from  the  date  of  said 
service  to  the  date  of  the  answer;  and  said  garnishee  shall  also  answer  what  he  or 
she  owes  the  defendant  at  the  date  of  the  service,  and  also  what  he  or  she  may  be- 
come indebted  to  the  defendant  at  any  time  between  the  date  of  the  service  of  the 
smnmons  and  the  answer  thereto. 

§  3536  (b). — All  debts  owing  to  the  defendant,  and  all  property,  money  or 
effects  of  the  defendant  coming  into  the  hands  of  the  garnishee  at  or  within  the 
times  desigiiated  in  the  preceding  section  shall  be  subject  to  process  of  garnish- 
ment, whether  the  garnishee  had  anything  in  his  hands  or  was  indebted  anything 
to  the  defendant  at  the  date  of  the  sei?vice  of  the  summons  or  not. 

§  353G  (c). — In  all  cases  where  judgment  has  been,  or  may  hereafter  be,  obtained 
in  the  courts  of  ordinary  of  this  state,  the  plaintiff  in  such  judgment  shall  be  enti- 
tled to  process  of  garnishment,  as  iu  other  cases  of  garnishment  at  common  law, 
and  the  proceedings  in  such  cases  shall  be  the  same  as  though  such  judgment  may 
have  been  obtained  in  the  superior  court:  Provided,  however,  that  the  person  sought 
to  be  garnished  shall  be  directed  and  required  to  answer  at  the  next  term  of  the 
superior  court  of  the  county  wherein  the  judgment  was  obtained;  but  if  the  ne:::t 
term  of  the  superior  court  shall  be  held  within  less  than  ten  days  after  the  sum- 
mons issues,  then  the  garnishee  shall  be  required  to  appear  and  answer  at  the  next 
term  of  the  com-t  thereafter. 

§  3530  (d). — The  plaintiffs  named  in  the  foregoing  section  shall  have  power  to 
garnish  persons  in  counties  other  than  the  county  wherein  their  judgments  are  or 
may  have  been  obtained,  as  in  other  cases  of  garnishment  at  common  law;  and  the 
defendants  in  such  judgments  and  claimants  to  the  money  or  property  in  the  hands 
of  the  garnishee  shall  have  the  right  to  dissolve  such  garnishments,  or  to  claim 
said  money  or  property,  in  the  same  manner  as  in  other  cases  of  garnishment  at 
common  law. 

§  3537  (3480)  (3406). — When  any  of  the  persons  sought  to  be  garnished  reside 
in  a  different  county  from  the  one  where  suit  is  pending,  or  in  which  judgment 
was  obtaineil,  it  shall  be  the  duty  of  the  officer  taking  such  affidavit  and  bond,  or 
any  other  officer  of  the  coimty  where  suck  suit  is  pending,  or  where  such  judgment 


488  GEORGIA. 

■was  obtained,  authorized  Ijy  this  code  to  issue  an  attachment,  to  whom  said  hond 
aud  ailidavit  may  be  delivered,  to  make  out  a  copy  thereof,  and  certify  the  same 
to  be  true,  and  shall  deliver  said  certified  copy  to  the  plaintiff,  his  a^ent,  or  attor- 
ney-at-law;  and  upon  such  certified  coi^y  being  delivered  to  any  officer  authorized 
to  issue  an  attachment,  of  the  county  where  the  person  sought  to  be  garnished 
resides,  it  shall  be  the  duty  of  such  office!-  to  issue  summons  of  garnishment  for 
such  ]icr.;on  as  he  may  be  directed  by  the  plaintiff,  his  agent,  or  attorney-at-l^w, 
requiring  him  to  appear  at  the  next  superior  or  justice's  court  of  said  county,  ac- 
cording as  such  suit  is  pending,  or  judgment  was  obtained  in  the  superior  or 
justice's  court,  then  and  there  to  depose  according  to  the  i)rovisions  of  the  previous 
sections;  but  if  the  said  superior  court  shall  be  held  within  less  than  twenty  daj-s, 
cr  said  justice's  court  shall  be  held  within  less  than  ten  days  from  the  time  such 
garnishment  issues,  the  garnishee  shall  be  required  to  appear  at  the  next  court 
thereafter. 

§  3538. — When  any  of  the  persons  sought  to  be  garnished  reside  in  a  different 
county  from  the  one  where  suit  is  pending,  or  in  which  judgment  was  obtained, 
the  pilalntiii,  his  agent  or  attorney-at-law  may  make  affidavit  and  give  bond  in  any 
county  in  the  state,  before  any  officer  authorized  to  issue  an  attachment  under  this 
code,  and  it  shall  be  the  duty  of  the  officer  taking  such  affidavit  and  bond  to  make 
out  a  coi^y  thereof,  and  certify  the  same  to  be  true,  and  to  issue  summons  of  gar- 
nishment for  such  person  as  he  may  be  directed  by  the  plaintiff,  his  agent  or  at- 
tomey-at-law,  requiring  him  to  appear  at  the  next  superior  or  justice's  court  of  the 
county  of  the  garnishee's  residence  according  as  such  suit  is  pending,  or  judgment 
was  obtained  in  the  superior  or  ju.stice's  court,  then  and  there  to  depose  according 
to  the  provisions  of  law;  and  it  shall  be  the  duty  of  the  officer  serving  such  sum- 
mons to. return  or  transmit  the  certified  affidavit  and  bond,  together  with  hij  act- 
ings and  doings  thereon,  to  the  superior  or  justice's  court  of  the  county  in  which 
such  suit  i.j  ponding  or  judgment  was  obtained,  and  to  return  the  original  affidavit 
and  bond  to  the  court  where  such  person  is  summoned  to  appear,  with  bis  actings 
end  doings  thereon;  and  all  subsequent  proceedings  shall  lie  the  same  as  prescribed 
by  this  code,  in  relation  to  garnishment,  in  cases  of  attachment,  where  the  gar- 
nishee resides  out  of  the  coimty  in  which  the  attachment  is  retm-nable.  This  fec- 
tion  shall  not  be  so  construed  as  to  repeal  the  preceding  section,  but  as  providing 
an  additional  mode  of  obtaining  garnishment  against  persons  residing  out  cf  the 
county  where  suit  is  pending  or  in  which  judgment  was  obtained;  and  so  mu'.h  of 
sa,id  section  as  relates  to  the  time  in  which  service  of  summons  of  garnishment 
shall  be  made  returnable  to  the  superior  or  justice's  court,  is  hereby  made  a  part  of 
this  section. 

§  3539  (3487)  (3467). — Upon  such  certified  copy  of  affidavit,  bond  and  summons 
of  garnishment  being  delivered  to  any  officer  authorized  by  law  to  le%-y  an  attach- 
ment, it  shall  be  his  duty  to  serve  the  summons  upon  the  i)erson  to  whom  it  is 
d-rected,  and  to  return  the  said  copy,  affidavit  and  bond  to  the  court  where  such 
person  is  summoned  to  appear,  together  with  his  actings  and  doings  entered 
thereon:  and  all  subsequent  proceedings  shall  be  the  same  as  is  prescribed  by  this 
code  in  relation  to  garnishment  in  cases  of  attachment  where  the  garnishee  resides 
out  of  the  county  in  which  the  attachment  is  retmmable. 

§  3540  (3488)  (34G8). — In  cases  where  garnishments  are  issued  when  suit  is  pend- 
ing, or  judgment  has  been  obtained,  the  defendant  may  dissolve  such  garnishment, 
and  have  the  same  dismissed,  upon  filing  in  the  clerk's  office  of  the  court  where  :.uit 
i.i  f)ending,  or  judgment  was  obtained,  or  with  the  justice  of  the  peace  where  suit  is 
pending,  or  judgment  was  obtained  in  such  court,  a  bond,  with  security,  payable 
to  the  plaintiff,  for  the  iiayment  of  the  amount  due  on  such  judgment,  or  which 
may  ba  recovered  in  said  action,  and  the  costs  thereon,  and  the  plaintiff  may  enter 
up  judgment  upon  such  bond  against  the  principal  and  securities,  as  judgment  may 
be  entered  against  securities  upon  appeal. 

§  3541. — "v^Tienever  any  process  of  garnishment  is  served  upon  any  person,  based 
upon  suit,  attachment  or  judgment,  and  there  shall  be  money  or  property  of  any 
kind  or  description  in  the  hands  of  the  garnishee,  or  that  shall  come  into  his  hands 
so  as  to  fall  within  the  operation  of  the  summons  of  garnishment  so  served  as 
aforesaid,  which  is  claimed  to  be  the  jiroperty  or  money  of  any  person  not  a  party 
to  the  proceeding  upon  which  said  garnishment  is  based,  said  claimant  may  dis- 
solve said  garnishment  by  filing  in  the  clerk's  office  of  the  superior  court  of  any 
county,  or  of  any  city  court,  or  in  the  office  of  any  justice  of  the  i>eace,  or  notary 
public,  according  as  said  garnishment  may  be  returnable  to  the  superior,  citj%  jus- 
tice or  notary  public's  coiu't,  a  bond  with  good  seciu-ity  in  twice  the  amount  of 
the  sum  claimed  upon  said  suit,  attachment,  or  judgment,  to  be  approved  by  said 
clerk,  or  said  justice  of  the  peace  or  notary  public,  conditioned  to  pay  to  the 
plaintiff  the  sum  .that  may  be  found  due  to  said  defendant  upon  the  trial  of  any 


GEORGIA.  489 

issue  ttat  may  be  formecl  upon  the  answer  of  the  garnishee,  or  that  may  be  admitted 
to  be  due  in  said  answer,  if  uutraversed. 

§  3542.  —The  garnisbeo,  upon  answering,  shall  be  discharged  from  all  further 
liability,  and  the  plaintiff 's  remedy  shall  be  upon  the  bond  so  executed  as  afore- 
said; the  i^laintiff  or  claimant,  or  both  of  them,  may  traverse  said  answer,  and  the 
issue  upon  said  traverse  shall  be  submitted  to  a  jury  as  other  issues  upon  the  answer 
of  garnishees;  if  said  garnishee  fails  to  answer  within  the  time  required  by  the 
laws  of  this  state,  judgment  shall  lie  had  against  him,  and  he  shall  be  liable  there- 
on, notwithstanding  any  bond  that  may  have  been  executed  by  any  claimant  of  the 
fund  or  property  in  his  hands. 

§  3543. — The  garnishee  shall  pay  over  or  deliver  any  money  or  property  to  the 
claimant  upon  the  dissolution  of  the  garnishment,  in  manner  aforesaid,  unless 
prevented  by  other  legal  process. 

§  3544. — The  claimant  of  any  fund  or  property,  to  whom  the  same  may  have 
been  paid  or  delivered  upon  the  dissolution  of  the  garnishment  in  the  manner 
before  iirescribcd,  shall  be  a  party  to  all  further  proceedings  upon  said  garnish- 
ment, and  judgment  shall  be  had  instanter  upon  said  bond  for  any  sums,  or  the 
value  of  any  property  that  may  be  found  to  have  been  in  the  hands  of  said  gar- 
nishee, liable  to  the  oi^eration  of  said  summons  of  garnishment. 

§  3545  (3489)  (34G9). — All  money  raised  by  virtue  of  the  process  of  garnishment 
under  this  code  shall  be  paid  over  to  the  creditors  of  the  dafendr.nt,  according  to 
the  priorities  now  established  l;iy  law — the  expenses  of  the  moving  creditors  being 
first  iiaid  pro  rata  by  the  judgment  creditors  receiving  the  benefit  of  his  diligence. 

§  354G  (3490)  (3470). — As  a  general  rule,  a  party  who  is  prevented  from  paying 
over  money  by  ijrocess  of  law  is  not  liable  for  interest;  but  if  a  garnishee  resists 
the  payment  of  the  fund  in  his  hands,  or  controverts  his  indebtedness,  he  is  liable 
for  interest  thereon — but  he  may  relieve  himself  from  interest  by  paying  the  fund 
into  court. 

§  3547  (3491)  (3471).— The  plaintiff  shall  not  have  judgment  against  the  gar- 
nishee until  he  has  obtained  judgment  against  the  defendant. 

§  3548  (3492)  (3472). — The  garnishee  must,  in  his  answer,  admit  or  deny  his  in- 
debtedness, or  that  he  has  or  had  effects  in  his  hands  belonging  to  defendant;  and 
if  he  is  unable  to  do  so,  his  inabiUty  must  ajipear  in  his  answer,  together  with  all 
the  facts  jilainlj^,  fully  and  distinctly  set  forth,  so  as  to  enable  the  court  to  give 
judgment  thereon. 

§  3549.— In  all  cases  where  process  of  garnishment  shall  be  served  ujoon  any 
person,  and  such  person  shall  make  a  true  answer  to  the  garnishment,  as  now  re- 
quired by  law,  and  shall  pay  the  sum  due  to  the  defendant  into  court,  or  shall  turn 
over  and  deliver  up  any  personal  property  of  the  defendants  that  he  may  have  in 
his  possession,  as  required  l>y  law,  or  shall  answer  truly  that  he  owes  the  defendant 
nothing,  if  the  garnishee  shall  have  to  incur  any  expense  in  making  his  or  her  an- 
swer to  the  garnishment,  or  in  turning  over  said  personal  property,  the  amount  so 
incmTed  shall  be  taxed  in  the  bill  of  costs,  under  the  approval  of  the  court,  and  be 
paid,  by  the  party  cast  in  the  suit,  as  other  costs  are  now  paid. 

§  3550. — V/henever  the  garnishee  shall  answer  that  he  has  money  or  currency 
in  his  control  belonging  to  the  defendant  in  the  principal  suit,  or  the  same  fact 
shall  be  ascertained  in  the  manner  provided  by  law,  the  plaintiff,  in  addition  to 
other  remedies  now  existing,  shall  have  the  same  remedy  to  enforce  the  delivery  of 
such  money  or  currency  as  exists  by  law  under  section  3305  of  this  code,  to  en- 
force the  delivery  of  property  or  effects;  and  all  the  i^rovisions  of  said  section  as  it 
exists,  and  shall  exist,  shall  apply  to  garnishments  at  common  law. 

§  3551  (3493)  (3473). — Collateral  securities  in  the  hands  of  a  creditor  shall  not 
be  the  subject  of  garnshment  at  the  instance  of  other  creditors. 

§  3552  (3494)  (.3474). — An  attorney-at-law  who  has  money  or  other  effects  in  his 
hands  belonging  to  the  defendant,  shall  be  subject  to  be  garnished. 

§3553(3495)  (3475). — A  receiver  appointed  by  a  court  of  equity  shall  not  be 
subject  to  the  process  of  garnishment. 

§3554  (349G)  (347G). — All  journeymen,  mechanics,  and  day  laborers  shall  be 
exempt  from  the  process  and  liabilities  of  garnishment  on  their  daily,  weekly,  or 
monthly  wages,  whether  in  the  hands  of  their  employers  or  others. 

§  3555  (3497)  (3477). — As  a  general  rule,  the  interest  of  a  legatee  or  distributee 
is  not  the  subject  of  garnishment  issued  against  an  executor  or  administrator,  but 


490  IDAHO. 

if  the  legacy  has  been  assented  to  by  the  executor,  and  such  legacy  is  not  defeated 
by  debts  against  the  estate,  and  when  there  has  been  a  final  settlement  Ijy  the 
administrator,  and  there  remains  in  his  hands  a  fixed  balance,  such  legacy  or  the 
interest  of  the  distributee  or  heir  may  be  reached  by  process  of  garnishment,  at 
the  instance  of  a  creditor  of  such  legatee,  distributee,  or  heir-at-law,  as  the  case 
may  be. 

§  3556  (3498)  (3478). — In  every  case  a  garnishment  may  be  issued  against  an 
executor  or  administrator  for  a  legacy  or  distributive  share,  or  for  any  debt  or  de- 
mand owing  by  said  estate  to  any  other  person,  if  the  creditor  will  swear — in 
addition  to  the  oath  required  in  ordinary  cases — that  his  debtor  resides  without 
the  state,  or  is  insolvent.  In  such  cases  the  executor  or  administrator  shall  not 
be  compelled  to  answer  the  garnishment  imtil  the  estate  in  his  hands  is  sufficiently 
administered  to  enable  him  safely  to  answer  the  same. 


Garnishment  in  justices'  courts — Sees.  4161,  4161  (a),  4162,  4163. 

Exemptions— Sees.  2002,  2040. 

Shares  of  stock  may  be  attached — Sec.  2626. 

Jurisdiction  of  county  courts — Sees.  283  (a),  283  (b). 


roAHO. 

[Code  op  Procedure,  1881.] 


ATTACHMENT. 


§  318. — The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any  time  after- 
ward, may  have  the  property  of  the  defendant  attached,  as  security  for  the  satis- 
faction of  p.ny  judgment  that  may  be  recovered,  unless  the  defendant  give  security 
to  pay  such  judgment,  as  in  this  chapter  provided,  in  the  following  cases: 

1.  In  an  action  upon  a  contract,  for  the  direct  payment  of  money,  where  the 
contract  is  not  secured  by  any  mortgage  or  lien  upon  real  or  personal  property,  or 
any  pledge  of  personal  property;  or,  if  originally  so  secured,  such  security  has, 
without  any  act  of  the  plaintiff,  or  the  person  to  whom  the  security  was  given, 
become  valueless. 

2.  In  an  action  upon  a  contract,  against  a  defendant  not  residing  in  this 
territory. 

§  319. — The  cleric  of  the  court  must  issue  the  writ  of  attachment,  upon  receiv- 
ing an  affidavit  by  or  on  behalf  of  the  plaintiff,  setting  forth: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
Buch  indebtedness  over  and  above  all  legal  set-offs  or  counter-claims),  upon  a  con- 
tract, for  the  du-ect  payment  of  money,  and  that  the  payment  of  the  same  has  not 
been  secured  by  any  mortgage  or  lien  upon  real  or  personal  propertj',  or  any  pledge 
of  i^ersonal  property,  or,  if  originally  so  secm-ed,  that  such  security  has,  without 
any  act  of  the  iDlaintiff,  or  the  person  to  whom  the  security  was  given,  become 
valueless;  or, 

2.  Th?.t  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
such  indebtedness  over  and  above  all  legal  set-offs  or  counter-claims),  and  that  the 
defendant  is  a  non-resident  of  the  territory;  and 

3.  That  the  attachment  is  not  sought,  and  the  action  is  not  prosecuted,  to 
hinder,  delay,  or  defraud  any  creditor  of  the  defendant. 

§  320. — Before  issuing  the  writ,  the  clei'k  must  require  a  written  undertaking  on 
the  part  of  the  plaintiff,  in  a  sum  not  less  than  two  hundred  dollars,  and  not  exceed- 
ing the  amount  claimed  by  the  plaintiff,  with  sufficient  sureties,  to  the  effect  that  if 
the  defendant  recover  judgment,  or  if  the  attachment  be  wrongfully  issued,  the 


IDAHO,  491 

plaintiff  will  pay  all  costs  that  ma.y  be  awarded  to  the  defendant,  and  all  damaijes 
which  he  m.'iy  sustain  by  reason  of  the  attachment,  not  exceeding  the  sum  specified 
in  the  undertaking. 

§321. — The  ■\\Tit  must  be  directed  to  the  .sheriff  of  any  county  in  which  the 
propertj'  of  such  defendant  may  be,  and  must  require  him  to  attach  and  safely  keep 
all  the  property  of  such  defendant  within  his  county,  not  exempt  from  execution, 
or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  jjlaintitf' s  demand,  the  amount 
of  which  must  be  stated  in  conformity  witli  the  complaint,  imless  tlie  defendant 
give  him  security  by  the  undertaking-  of  at  bast  two  sufHcient  sureties,  in  an 
amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in  an  amount  equal  to 
the  value  of  the  property  which  has  been,  or.is  about  to  be,  attached;  in  which  case, 
to  take  such  undertaking.  Several  writs  may  be  issued  at  the  same  time  to  the 
Bherii'fs  of  different  counties;  and  the  plaintiff  may  have  other  writs  of  attachment 
as  often  as  he  may  require  at  anytime  before  judgment. 

§  322. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  together  with  the  interest  and  profit  thereon,  and  all 
debts  due  such  defendant,  and  all  other  propei-ty  in  this  territory  of  such  defend- 
ant not  exempt  from  execution,  may  be  attached,  and,  if  judgment  be  recovered, 
be  sold  to  satisfy  the  judgment  and  execution. 

§323. — The  sheriff  to  whom  the  writ  is  directed  and  delivered,  must  execute 
the  same  without  delay,  and  if  the  undertaking  mentioned  in  section  321  be  not 
given,  as  follows: 

1.  Real  property,  standing  upon  the  records  of  the  county  in  the  name  of  the 
defendant,  must  be  attached,'  by  filing  with  the  recorder  of  the  county  a  copy  of 
the  writ,  together  with  a  description  of  the  property  attached,  and  a  notice  that  it 
is  attached;  and  by  leaving  a  similar  copy  of  the  writ,  description,  and  notice  with 
an  occupant  of  the  property,  if  there  is  one;  if  not,  then  by  posting  the  same  in  a 
conspicuous  place  on  the  property  attached; 

2.  E,eal  j^roperty,  or  an  interest  therein,  belonging  to  the  defendant,  and  held 
by  any  other  person,  or  standing  on  the  records  of  the  county  in  the  name  of  any 
other  person,  must  be  attached,  by  filing  with  the  recorder  of  the  county  a  copy  of 
the  writ,  together  with  a  description  of  the  property,  and  a  notice  that  such  real 
1  roperty,  and  any  interest  of  the  defendant  therein,  held  by  or  standing  in  the 
name  of  such  other  jierson  (naming  him),  are  attached;  and  by  leaving  with  tha 
occupant,  if  any,  and  with  such  other  person,  or  his  agent,  if  known  and  within  the 
coun./y,  or  at  the  residence  of  either,  if  within  the  county,  a  copy  of  the  writ,  with 
a  similar  description  and  notice.  If  there  is  no  occupant  of  the  property,  a  copy 
of  the  writ,  together  with  such  description  and  notice,  must  be  i3osted  in  a  con- 
spicuou.'s  place  Ufjon  the  property.  The  recorder  must  index  such  attachment  when 
filed,  in  the  names  both  of  the  defendant  and  of  the  person  by  whom  the  proj)erty 
is  held  or  in  whose  name  it  stands  on  the  records. 

3.  Personal  i^roperty,  capable  of  manual  delivery,  must  be  attached  by  taking 
it  into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares,  of  any  corporation  or  com- 
pany, must  be  attached  by  leaving  with  tlie  president,  or  other  head  of  the  same, 
or  the  secretary,  cashier,  or  other  managing  agent  thereof,  a  copy  of  the  writ,  and 
a  notice  stating  that  the  stock  or  interest  of  the  defendant  is  attached,  in  piu-suance 
of  such  %vrit. 

5.  Debts  and  credits,  and  other  personal  property,  not  capable  of  manual  deliv- 
ery, must  be  attached  by  leaving  with  the  person  omng  such  debts,  or  having  in 
his  i:)ossession,  or  under  his  control,  such  credits  or  other  personal  propert  j',  or  with 
his  agent,  a  copy  of  the  -writ,  and  a  notice  that  the  debts  owingby  him  to  the 
defendant,  or  the  credits  or  other  personal  property  in  his  possession  or  under  his 
control,  belonging  to  the  defendant,  are  attached  in  pursuance  of  such  writ. 

§  324.— Upon  receiving  information  in  writing  from  the  plaintiff,  or  his  attor- 
ney, that  any  per  jon  has  in  his  jiossession,  or  under  his  control,  any  credits  or  other 
personal  property,  belonging  to  the  defendant,  or  is  owing  any  debt  to  thedefend- 
ant,  the  sheriff  must  serve  upon  such  i^erson  a  copy  of  the  writ  and  a  notice  that 
such  credits,  or  other  jDroperty  or  debts,  as  the  case  may  be,  are  attached  in  pursu- 
ance of  such  ^vrit. 

§  32j. — All  persons  having  in  their  possession,  or  under  their  control,  any  credits 
or  other  personal  property  belonging  to  the  defendant,  or  owing  any  debts  to  the  de- 
fendant at  the  time  of  the  service  upon  them  of  a  copy  of  the  writ  and  notice,  as  pro- 
vided in  the  Ir.st  two  sections,  shall  be,  unless  such  property  be  delivered  up  or  trans- 
ferred, or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff_  for  the  amount 
of  such  credits,  property,  or  debts,  untU  the  attachment  be  discharged,  or  any 
judgment  recovered  by  him  be  satisfied. 


492  IDAHO. 

§  o2G. — Any  person  o'wmg'  debts  to  the  defendant,  or  having  in  his  posi?ession  or 
under  his  control,  any  credits  or  other  personal  projierty  belonfrin:;  to  the  tiefend- 
ant,  may  be  rcciiiired  to  attend  before  the  court  or  judge,  or  a  referee  appointed  by 
the  court  or  judge,  and  be  examined  on  oath  respecting  the  same.  The  defendant 
may  also  be  required  to  attend  for  the  purpose  of  giving  information  respecting  his 
property,  and  may  be  examined  on  oath.  The  court  or  judge  may,  after  such  ex- 
r.min:ition,  order  personal  property,  capable  of  manual  delivery,  to  be  delivered  to 
the  sheriff  on  such  terms  as  may  be  just,  having  reference  to  any  liens  thereon  or 
claims  against  the  same,  and  a  memorandum  to  be  given  of  all  other  personal 
property,  containing  the  amount  and  descrijition  thereof. 

§  327. — The  sheriff  must  make  a  full  inventory  of  the  property  attached,  and 
return  the  same  vrith  the  ■v\Tit.  To  enable  him  to  make  such  return  as  to  t!ie  debts 
iind  credits  attached,  he  must  request,  at  the  tirge  of  service,  the  party  ovring  the 
debt  or  having  the  credit  to  give  him  a  memorandum,  stating  the  "amount  and 
<lescription  of  each;  and  if  such  memorandum  be  refused,  he  muit  retiu-n  the  fact 
of  refusal  with  the  %\Tit.  The  party  refusing  to  give  the  memorandum  may  be 
required  to  j;ay  the  costs  of  any  proceedings  taken  for  the  purpose  of  obtaining 
information  respecting  the  amounts  and  description  of  such  debt  or  credit. 

§  328. — If  any  of  the  property  attached  be  perishable,  the  sheriff  must  sell  the 
same  in  the  manner  in  which  such  property  is  sold  on  execution.  The  i^roceeds, 
£nd  other  jiroperty  attached  by  him,  must  be  retained  by  him  to  answer  any  judg- 
ment that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution 
upon  another  judgment  recovered  previous  to  issuing  of  the  attachment,  liebts 
and  credits  attached  may  be  collected  by  him,  if  the  same  can  be  done  without 
suit.     The  slieriff 's  receipt  is  a  sufncieut  discharge  for  the  anio«iit  i^aid. 

§  329. — Whenever  property  has  been  taken  by  an  officer  under  a  writ  of  attach- 
ment, and  it  is  made  to  ajipear  satisfactorily  to  the  court,  or  a  judge  thereof,  that 
the  interest  of  the  parties  to  the  action  will  be  subserved  by  a  sale  thereof,  tlie 
court  or  judge  may  order  such  property  to  be  sold  in  the  same  manner  as  property 
is  sold  under  an  execution,  and  the  proceeds  to  be  deposited  in  the  court,  to  abide 
the  judgment  in  the  action.  Such  order  can  be  made  only  upon  notice  to  the 
adverse  party,  or  his  attorney,  in  case  such  party  has  been  personally  served  with 
a  summons  in  the  action. 

§3.10. — If  any  personal  projjerty  attached  be  claimed  by  a  third  person  as  his 
property,  the  sheriff  may  sununon  a  jury  of  six  men  to  try  the  validity  of  such 
<laim;  and  such  x)roceedings  shall  be  had  thereon,  with  the  like  effect,  as  in  case 
of  a  claim  after  levy  upon  execution. 

§  3.31. — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  must  satisfy  the 
same  out  of  the  property  attached  by  him  which  has  not  been  delivered  to  the 
defendant,  or  a  claimant,  as  hereinbefore  provided,  or  subjected  to  execution  on 
another  judgment  recovered  previous  to  the  issuing  of  the  attacliment,  if  it  be 
sufficient  for  that  purpose: 

1.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property  sold 
by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much  as  shall  be  necessary 
to  satisfy  the  judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  the 
j  udgment,  he  must  sell  under  the  execution  so  much  of  the  property,  real  or  personal, 
as  may  be  necessaiy  to  satisfy  the  balance,  if  enough  for  that  purpose  remain  in  his 
hands.  Notices  of  the  sales  must  be  given,  and  the  sales  conducted  as  iu  other 
cases  of  sales  on  execution. 

§  332. — If,  after  selling  all  the  property' attached  by  him,  remaining  in  his  hands, 
and  applying  the  jiroceeds,  together  with  the  proceeds  of  any  debts  or  credits  col- 
lected by  him,  deducting  his  fees,  to  the  paj-ment  of  the  judgment,  any  balance 
shall  remain  due,  the  sheriff  must  proceed  to  collect  such  balance,  as  upon  au  exe- 
cutitjn  in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  sheriff, 
xipon  reasonable  demand,  must  deliver  over  to  the  defendant  the  attached  jiroperty 
remaining  in  his  hands,  and  any  proceeds  of  the  property  attached  unapplied  on  the 
judgment.       » 

§  333. — If  the  execution  be  returned  unsatisfied,  in  whole  or  in  pai-t,  the  plaint- 
iff may  prosecute  any  imdertaking  given  jjursuant  to  section  .321  or  section  33G,  or 
he  may  proceed  as  in  other  cases  upon  the  return  of  an  execution. 

§  334. — If  the  defendant  recover  judgment  against  the  plaintiff,  anj'  imdertak- 
ing received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  must  be 


IDAHO.  493 

(lelivered  to  the  defendant  or  his  agent.     The  order  of  attachment  shall  he  dis- 
charged, and  the  proi^erty  released  therefrom. 

§  335. — AVRenever  the  defendant  has  appeared  in  the  action,  he  may,  upon 
reasonable  notice  to  the  i^laintiff ,  apply  to  the  court  in  which  the  action  is  pending, 
or  to  tlie  jmlge  thereof,  for  an  order  to  discharge  the  attachment,  wholly  or  in 
part;  and  upon  the  execution  of  the  undertaking  mentioned  in  the  next  section,  an 
order  may  Ije  made,  releasing  from  the  opei-ation  of  the  attachment  any  or  all  of 
the  property  attached;  and  all  of  the  i)roperty  so  released,  and  all  of  the  proceeds 
of  the  sales  thereof,  must  be  delivered  to  the  defendant,  upon  the  justification  of 
the  sureties  on  the  undertaking',  if  reciuired  by  the  plaintiif. 

§  33G. — Before  making  such  order,  the  court  or  judge  must  require  an  under- 
taking on  liehalf  of  the  defendant,  by  at  least  two  siireties,  resident*  and  free- 
holders, or  householders,  in  the  county,  to  the  effect  that  in  case  the  plainti.T  recover 
judgTaent  in  the  action,  defendant  will,  on  demand,  redeliver  the  attached  prop- 
erty so  released  to  the  proper  officer,  to  be  applied  to  the  payment  of  the  judgment, 
or,  in  defaidt  thereof,  that  the  defendant  and  sureties  will,  on  demand,  pay  to  the 
phuntiti  the  lull  value  of  the  projierty  released.  The  cmxrt  or  judge  making  such 
order  may  fix  the  sum  for  which  the  undertaking  must  be  executed,  and,  if  neces- 
sary in  fixing  such  sum  to  know  the  value  of  the  property  released,  the  same  may 
lie  appraised  by  one  or  more  disinterested  persons,  to  be  appointed  for  that  pur- 
pose. The  sureties  may  be  required  to  justify  before  the  court  or  judge,  and  the- 
property  attached  cannot  be  released  from  the  attachment  without  their  justification, 
if  the  same  be  required. 

§  337. — The  defendant  may  also  at  any  time,  either  before  or  after  the  release  of 
the  attached  property,  or  before  any  attachment  shr.ll  have  been  actually  levied, 
apply  on  motion,  ufion  reasonable  notice  to  the  plaintiff,  to  the  court  in  which  the 
action  is  brought,  or  to  the  judge  thereof,  that  the  writ  of  attachment  be  dis- 
charged, on  the  ground  that  the  same  was  improperly  or  irregularly  issued. 

§  338. — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant,  but 
not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other  evidence,  in 
addition  to  those  on  which  the  attachment  'was  made. 

§  339. — If,  upon  such  application,  it  satisfactorily  appears  that  the  writ  of 
attachment  was  improperly  or  irregularly  issued,  it  must  be  discharged. 

§  340. — The  sheriff  must  return  the  writ  of  attachment  ^\^th  the  summons,  if 
issued  at  the  same  time;  otherwise,  within  twenty  days  after  its  receipt,  with  a 
certificate  of  his  proceedings  indorsed  thereon  or  attached  thereto;  and  whenever 
an  order  has  been  made  discharging  or  releasing  attachment  upon  real  property, 
a  certified  copy  of  such  order  may  be  filed  in  the  office  of  the  county  recorder  in 
which  the  notice  of  attachment  has  been  filed,  and  be  indexed  in  like  manner. 

§  578. — A  •WT'it  to  attach  the  property  of  the  defendant  must  be  issued  by  the 
judge  or  justice  at  the  time  of,  or  after  issuing  summons  and  before  answer,  on 
receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff,  showing  the  same  facts  as  are 
required  to  be  shown  by  the  affidavit  for  attachment  out  of  the  district  court. 

§  579. — Before  issuing  the  writ,  the  judge  or  justice  must  require  a  wiitten 
undertaking  on  the  j  art  of  the  plaintiff,  with  two  or  more  sufficient  sureties,  in  a 
sum  not  less  than  fifty  nor  more  than  three  hundred  dollars,  to  the  effect  that  if 
the  defendant  recover  judgment  the  plaintiff  will  pay  all  costs  that  may  be  awarded 
to  the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specified  in  the  undertaking. 

§  580.— The  writ  may  be  directed  to  the  sheriff  or  any  constable  of  the  county, 
or  the  sheriff  of  any  other  county,  and  must  require  him  to  attach  and  safely  keep 
all  the  property  of  the  defendant  within  his  county,  not  exempt  from  execution,  or 
so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount. 
of  which  must  be  stated  in  conformity  with  the  complaint,  unless  the  defendant, 
give  him  security,  by  the  undertalcing  of  two  sufficient  sureties,  in  an  amount 
sufficient  to  satisfy  such  demand,  besides  costs;  in  which  case,  to  take  such  under- 
taking. 

* 

§  581.  ^The  sections  of  this  code  providing  for  attachments  out  of  the  district 
court,  except  as  in  this  chapter  expressly  provided,  are  applicable  to  attachments 
issued  out  of  the  jiroljate  and  justices'  courts,  the  necessary  changes  and  substitutiona 
being  made  therein. 


Attachments  in  probate  and  justice's  courts — §§  578-581. 


494  ILLINOIS. 


ILLINOIS. 

[Eevised  Statutes,  1883.] 
CHAP  XL 

IN  COUKTS  OF  EECORB. 

§  1. — In  any  court  of  record  having  competent  jurisdiction,  a  creditor  may  have 
an  attachmeiit  against  the  property  of  his  debtor,  or  that  of  any  one  or  more  of 
several  debtors,  when  the  indebtedness  exceeds  $20,  in  any  one  of  the  following 
cases: 

First.    Wten  the  debtor  is  not  a  resident  of  this  state. 

Second.  When  the  debtor  conceals  himself  or  stands  in  defiance  of  an  officer, 
so  that  process  cannot  be  served  upon  him. 

Third.  Where  the  debtor  has  departed  from  this  state  with  the  intention  of 
having  his  effects  removed  from  this  state. 

FourtJi.  Where  the  debtor  is  about  to  dei^art  from  this  state  with  the  intention 
of  having  his  effects  removed  from  this  state. 

Fifth.  Where  the  debtor  is  about  to  remove  his  property  from  this  state  to  the 
injury  of  such  creditor. 

Sixth,  ^^'here  the  debtor  has,  within  two  years  preceding  the  filing  of  the  affi- 
davit required,  fraudulently  conveyed  or  assigned  his  effects,  or  a  part  thereof,  so 
as  to  hinder  or  delay  his  creditors. 

Seventh  Where  the  debtor  has,  %vithin  two  years  prior  to  the  filing  of  such  af- 
fidavit, fraudulently  concealed  or  disiJosed  of  his  property,  so  as  to  hinder  or  delay 
his  creditors. 

Eighth  \Vhere  the  debtor  is  about  fraudulently  to  conceal,  assign  or  otherwise 
dispose  of  his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors. 

Ninth.  Where  the  debt  sued  for  was  fraudulently  contracted  on  the  part  of  the 
debtor:  Provided,  the  statements  of  the  debtor,  his  agent  or  attorney,  which  con- 
stitute the  fraud,  shall  have  been  reduced  to  writing,  and  his  signature  attached 
thereto,  by  himself,  agent  or  attorney. 

§  2. — To  entitle  a  creditor  to  such  vrrit  of  attachment,  he  or  his  agent  or  attor- 
ney shall  make  and  file  with  the  clerk  of  such  court,  an  affidavit  setting  forth  the 
nature  auu  amount  of  the  indebtedness,  after  allowing  all  just  credits  and  set-offs, 
and  any  one  or  more  of  the  causes  mentioned  in  the  preceding  section,  and  also 
stating  the  place  of  residence  of  the  defendants,  if  kncivn,  and  if  not  Icnown,  that 
upon  diligent  inquiry  the  affiant  has  not  been  able  to  ascertain  the  same. 

§  3. — It  shall  be  sufficient,  in  all  cases  of  attachment,  to  designate  defendants 
by  their  reputed  names,  by  surnames,  and  joint  defendants  by  their  sejoarate  or 
partnership  names,  or  by  such  names,  styles  or  titles  as  they  are  usually  known; 
and  heirs,  executors  and  administrators  of  deceased  defendants  shall  be  subject  to 
the  provisions  of  this  act,  in  all  cases  in  which  it  may  be  applicable  to  them. 

§  4. — Before  granting  an  attachment,  as  aforesaid,  the  clerk  shall  take  bond  and 
sufficient  security,  payable  to  the  defendant  against  whom  the  writ  is  to  be  issued, 
in  douljle  the  sum  sworn  to  be  due,  conditioned  for  satisfying  all  costs  which  may 
be  awarded  to  such  defendant,  or  to  any  others  interested  in  said  proceedings,  and 
all  damages  and  costs  which  shall  be  recovered  against  the  jslaintiff,  for  wrongfully 
suing  out  such  attachment — which  bond,  with  affidavit  of  the  party  complaining, 
or  his  agent  or  attorney,  shall  be  filed  in  the  office  of  the  clerk  granting  the  attach- 
ment. Every  attachment  issued  without  a  bond  and  an  affidavit  taken  is  hereby 
declared  illegal  and  void,  and  shall  he  dismissed. 

§  5. — The  condition  of  the  bond  required  in  the  preceding  section  shall  be  sub- 
stantially in  the  following  form: 

The  condition  of  this  obligation  is  such,  that  whereas  the  above  bounden- 


hath,  on  the  day  of  the  date  hereof,  iirayed  an  attachment  out  of  the court 

of  said  county,  at  the  suit  of against  the  estate  of  the  above-named 

for  the  sum  of ,  and  the  ^ame  being  about  to  be  sued  out  of  said  court, 

retm-nable  on  the  said day  of next,  to  the  term  of  the  court  then  to 


ILLINOIS.  495 

be  holden:  Now,  if  the  said shall  prosecute  his  suit  with  effect,  or  in  case  of 

failure  therein  shall  well  and  truly  pay  and  satisfy  the  said ,  all  such  costs  in 

said  suit,  and  such  damages  as  shall  be  awarded  against  the  said ,  his  heirs, 

executurs  or  administrators,  in  any  suit  or  suits  which  may  hereafter  be  brought, 
for  -ivTongfully  suing  out  said  attachment,  then  the  above  obligation  to  be  void; 
otherwise  to  remain  in  full  force  and  effect. 

§  C. — The  writ  of  attachment  required  in  the  preceding  section  shall  be  directed 
to  the  sheriff,  or  in  case  he  is  interested  or  otherwise  disqualiiied  or  prevented  from 
acting,  to  the  coroner  of  the  county  in  which  the  suit  is  commenced,  and  shall  be 
substantially  in  the  following  form: 

The  people  of  the  state  of  Illinois  to  the  sheriff  of county — Greeting: 

Whereas  A.  B.  (or  agent  or  attorney  of  A.  B.,  as  the  case  may  be),  hath  com- 
plained that  C.  D.  is  justly  indebted  to  the  said  A.  B.  to  the  amount  of , 

and  that  (here  state  the  cause  set  out  in  the  affidavit),  and  the  said having 

given  bond  and  security  according  to  law:  We  therefore  command  you  that  you 
attach  so  much  of  the  estate,  real  or  personal,  of  the  said  C.  D.,  to  be  found  in 
your  county,  as  shall  be  of  value  sufficient  to  satisfy  the  said  debt  and  costs,  ac- 
cording to  the  complaint,  and  such  estate  so  attached  in  your  hands  to  secure,  or  so 
to  provide,  that  the  same  may  be  liable  to  further  proceedings  thereupon,  according 
to  law;  and  that  you  summon  C.  D.  to  appear  and  answer  the  complaint  of  the 

said  A.  B. ,  at  a  court,  to  be  holden  iit ,  in  the  county  of ,  upon  the 

day  of next:  and  that  you  also  summon ,  and  such  other  per- 
sons as  you  shall  be  required  by  the  said  A.  B. ,  as  garnishee,  to  be  and  appear  at 

the  said  court  on  the  said day  of next,  and  then  and  there  to  answer 

to  what  may  be  objected  against  them.  When  and  where  you  shall  make  known 
to  the  said  court  how  you  have  executed  this  writ,  and  have  you  then  and  there 
this  writ. 

Witness, ,  clerk  of  the  said  court,  this day  of  ,  in  the  year 

of  our  Lord,  etc. 

Which  attachment  shall  be  signed  by  the  clerk,  and  the  seal  of  the  court  affixed 
thereto. 

§  7. — In  all  cases  where  two  or  more  persons  are  jointly  indebted,  either  as 
partners  or  otherwise,  and  an  affidavit  shall  he  filed  as  provided  in  the  first  section 
of  this  act,  so  as  to  bring  one  or  more  of  such  joint  debtors  within  its  provisions, 
and  amenable  to  the  process  of  attachment,  then  the  writ  of  attachment  shall 
issue  against  the  jiroperty  and  effects  of  such  as  are  so  brought  within  the  provi- 
sions of  this  act,  and  the  officer  shall  be  also  directed  in  said  ■writ  to  summon  all 
joint  debtors  named  in  the  affidavit  filed  in  the  case,  whether  the  attachment  is 
against  them  or  not,  to  answer  to  the  said  action,  as  in  other  cases  of  joint  defend- 
ants. 

§  8. — Such  officer  shall  without  delay  execute  such  writ  of  attachment  upon  the 
lands,  tenements,  goods,  chattels,  rights,  credits,  moneys  and  effects  of  the  debtor, 
or  upon  any  lands  or  tenements  in  and  to  which  such  debtor  has  or  may  claim 
any  equitable  interest  or  title,  of  sufficient  value  to  satisfy  the  claim  sworn  to, 
with  costs  of  suit  as  commanded  in  such  wi'it. 

§  9.  —When  a  writ  of  attachment  is  levied  upon  any  real  estate,  in  any  case,  it 
shall  be  the  duty  of  the  officer  making  the  levy  to  file  a  certificate  of  such  fact 
with  the  recorder  of  the  county  where  such  land  is  situated;  and  from  and  after 
the  filing  of  the  same,  such  levy  shall  take  effect,  as  to  creditors  and  bona  fide  pur- 
chasers, without  notice,  and  not  before. 

§  10. — The  officer  shall  also  serve  said  writ  upon  the  defendant  therein,  if  he 
can  be  found,  by  reading  the  same  to  him  or  delivering  a  copy  thereof.  The  return 
to  such  writ  shall  state  the  particular  manner  in  which  the  same  was  served. 

§  11. — If  the  defendant,  or  any  person  for  him,  shall  be  in  the  act  of  removing 
any  personal  iirojierty,  the  officer  may  pursue  and  take  the  same  in  any  county  in 
this  state,  and  return  the  same  to  the  county  from  which  such  attachment  issued. 

§  12.  ^If  it  shall  appear,  by  the  affidavit,  that  a  debtor  is  actually  absconding, 
or  concealed,  or  stands  in  defiance  of  an  officer  duly  authorized  to  arrest  him  on 
civij  process,  as  aforesaid,  or  has  departed  this  state  with  the  intention  of  having 
bis  effects  and  personal  estate  removed  out  of  the  state,  or  intends  to  depart  with 
such  intention,  it  shall  be  lawful  for  the  clerk  to  issue,  and  sheriff  or  other  officer 
to  serve,  an  attachment  against  such  debtor,  on  a  Sunday  as  on  any  other  day. 

§13. — The  creditor  may,  at  the  same  time,  or  at  any  time  before  judgment, 
cause  an  attachment  writ  to  be  issued  to  any  other  county  ia  the  state  where  the 


496  iLLixois. 

debtor  may  have  property  liable  to  be  attached,  which  shall  be  levied  as  other  at- 
tachment ^^•Tits:  Provided,  that  if  no  property,  rights  or  credits  of  the  d.btor  are 
found  in  the  county  in  which  the  suit  is  brou^^'ht  and  no  defendant  is  served  with 
summons  or  makes  appearance,  the  creditor  shall  not  be  entitled  to  jud^jment. 

§  14. — The  officer  serving  the  writ  shall  take  and  retain  the  custody  and  posses- 
sion of  the  propertj'  attached,  to  answer  and  abide  by  the  judgment  of  the  court, 
unless  the  person  in  whose  possession  the  same  is  found  shall  enter  into  bond  and 
security  to  the  officer,  to  be  approved  by  him,  in  double  the  value  of  the  property 
so  attached,  with  condition  that  the  said  estate  and  property  shall  be  forthcoming 
to  answer  the  judgment  of  the  court  in  said  suit.  The  sheriff  or  other  officer 
shall  return  such  bond  to  the  court  in  which  the  suit  is  brought,  on  the  first  day  of 
the  term  to  which  such  attachment  is  returnable. 

§  15. — Any  defendant  in  attachment,  desiring  the  return  of  property  attached, 
may,  at  any  time  except  in  term  time,  at  his  option,  instead  of  or  in  substitution 
for  the  Ijond  required  in  the  preceding  section,  give  like  bond  and  secm'ity,  in  a 
sum  sufficient  to  cover  the  debt  and  damages  sworn  to  on  behalf  of  the  plaintiSf, 
with  all  interest,  damages  and  costs  of  suit,  conditioned  that  the  defendant  will 
pay  the  plaintiff  the  amount  of  the  judgment  and  costs  which  may  be  rendered 
against  him  in  that  suit,  on  a  final  trial,  within  ninety  days  after  such  judgment 
shall  be  rendered.  In  term  time,  a  recognizance,  in  substance  as  aforesaid,  may 
be  taken  in  open  court,  and  entered  of  record,  in  which  case  the  court  shall 
approve  of  the  secmity  and  the  recognizance  made  to  the  plaintiff,  and  upon  a  for- 
feiture of  such  recognizance  judgment  may  be  rendered  and  execution  issued  as  in 
other  cases  of  recognizance.  In  either  case  the  attachment  shall  bedissolved,  and 
the  property  taken  restored,  and  all  previous  proceedings,  either  against  the  sheriff 
or  against  the  garnishees,  set  aside,  and  the  caiise  shaU  i^roceed  as  if  the  defend- 
ant had  been  seasonably  served  with  a  %\Tit  of  summons. 

§  16. — If  the  sheriff  shall  fail  to  return  a  bond  taken  by  virtue  of  the  provi- 
sions of  this  act,  or  shall  have  neglected  to  take  one  when  he  ought  to  have  done 
so,  in  any  attachment  issued  under  any  provisions  of  this  act,  the  plaintiff  i:i  the 
attachment  may  cause  a  rule  to  be  entered  at  any  time  during  the  first  ten  days  of 
the  term  to  which  the  writ  is  returnable,  requh-ing  the  said  sheriff  to  return  the 
said  bond;  in  case  no  bond  has  laeen  taken,  to  show  cause  why  such  bond  was  not 
taken.  If  the  said  sheriff  shall  not  return  the  said  bond  within  one  day  thereafter, 
or  show  legal  and  sufficient  cause  why  the  said  bond  had  not  been  taken,  judgment 
shall  be  entered  up  against  him  for  the  amount  of  the  plaintiff's  demand,  with  costs 
of  suit.  Execution  may  thereupon  issue  for  the  same,  whenever  judgment  shall 
have  been  entered  against  the  defendant  in  the  attachment. 

§  17. — The  plaintiff  may,  at  the  first  term  after  the  return  of  such  bond,  except 
to  the  sufficiency  thereof,  reasonable  notice  of  such  exception  having  been  given  to 
the  sheriff  or  other  officer  who  took  the  same,  and  if,  upon  hearing,  the  court  shall 
adjudge  such  security  insufficient,  such  sheriff  shall  be  subject  to  the  same  judg- 
ment and  recover}',  and  have  the  same  liberty  of  defense  as  if  he  had  been  made  de- 
fendant in  the  attachment,  unless  good  and  sufficient  security  shall  be  given  within 
such  time  as  may  be  directed  by  the  court,  and  execution  may  issue  thereuijon  as 
in  other  cases  of  judgment.  And  whenever  the  judgment  of  the  plaintiff,  or  any 
part  thereof,  shall  be  paid  or  satisfied  bj'  any  such  sheriff,  he  shall  have  the  same 
remedy  against  the  defendant  for  the  amount  so  paid  by  him,  as  is  now  provided  by 
law  for  bail  against  their  principal,  where  a  judgment  is  paid  or  satisfied  by  them. 

§  18.— If  the  plaintiff  shall  not  except  to  the  bond  taken  by  the  sheriff,  as  afcw- 
said,  or  the  exceptions  are  not  sustained,  and  such  bond  shall  be  forfeited,  the 
plaintiff  in  the  attachment  may  bring  suit  thereon  in  his  o-mi  name,  tlie  sameasij 
such  bond  had  been  assigned  to  him,  and  judgment  shall  be  given  for  the  plaiuti_3 
against  the  obligors  in  the  bond  for  the  value  of  the  property,  or  if  the  property  is 
greater  than  the  amount  due  upon  the  execution,  then  for  the  amount  due  and  costs 
of  suit. 

§  19. — When  any  sheriff  or  other  officer  shall  serve  an  attachment  on  horses, 
cattle  or  live  stock,  -and  the  same  shall  not  be  immediately  reple\-ied  or  restored  to 
the  debtor,  such  officer  shall  provide  sufficient  sustenance  for  the  support  of  such 
live  stock  until  the  same  shall  be  sold  or  discharged  from  such  attachment.  _  He 
shall  receive  therefor  a  reasonable  compensation,  to  be  ascertained  and  determined 
by  the  court  ouc  of  which  the  attachment  issued,  and  charged  in  the  fee-bill  of  such 
officer,  and  shall  be  collectable  as  part  of  the  costs. 

§  20. — ^Vhen  any  goods  and  chattels  shall  be  levied  on  by  virtue  of  any  attach- 
ment, and  the  sheriff  or  other  officer,  in  whose  custody  such  goods  and  chattels 
are,  shall  be  of  oi^inion  that  the  same  are  of  a  perishable  nature  and  in  danger  of 


ILLINOIS.  497 

immediate  waste  or  decay,  such  sheriff  or  other  oflBcer  shall  summon  three  respect- 
able freeholders  of  his  county,  who  shall  examine  the  goods  and  chattels  so  levied 
on;  and  if  the  said  freeholders  shall,  on  oath  or  affirmation,  certify  that  in  their 
opinion  they  are  of  a  perishable  natui-e,  and  in  danger  of  immediate  waste  and  de- 
cay, then  such  goods  and  chattels  shall  be  sold  at  public  vendue,  by  the  sheriff  or 
other  officer,  he  having  first  advertised  such  sale  at  the  court-house  and  two  other 
public  places  in  his  county  at  least  ten  days  before  the  sale:  Provided,  such  proj)- 
erty  may  be  sold  upon  such  notice,  less  than  ten  days,  as  the  examiners  shall  cer- 
tify mil  be  for  the  best  interest  of  the  parties  concerned.  The  money  arising  froin 
such  sale  shall  be  liable  to  the  judgment  obtained  upon  such  attachment,  and  de- 
posited in  the  hands  of  the  clerk  of  the  court  to  which  the  process  shall  be  return- 
able, there  to  abide  the  event  of  such  suit. 

§  21. — "When  the  sheriff  or  other  officer  is  unable  to  find  property  of  any  de- 
fendant, suffi-cient  to  satisfy  any  attachment  issued  under  the  provisions  of  this 
act,  he  shall  summon  the  jiersons  mentioned  in  such  ■WTit  as  garnishees,  and  all 
other  persons  within  his  county  whom  the  creditors  shall  designate  as  having  any 
propertj'',  effects,  choses  in  action  or  credits,  in  then-  possession  or  jiower,  belonging 
to  the  defendant,  or  who  are  in  anywise  indebted  to  such  defendant,  the  same  as  if 
their  names  had  been  inserted  in  such  writ;  the  persons  so  summoned  shall  be  con- 
sidered as  garnishees,  and  the  sheriff  shall  state,  in  his  return,  the  names  of  all 
persons  so  summoned,  and  the  date  of  such  service  on  each. 

§  22. — When  it  shall  appear  by  the  afSda^^t  filed,  or  by  the  return  of  the  ofScer, 
that  a  defendant  in  any  attachment  suit  is  not  a  resident  of  this  state,  or  the  de- 
fendant has  departed  from  this  state,  or  on  due  inquiry  cannot  be  found,  or  is 
concealed  within  this  state,  so  that  jDrocess  cannot  be  served  iipon  him,  it  shall  be 
the  duty  of  the  clerk  of  the  court  in  which  such  suit  is  pending  to  give  notice  by 
publication  at  least  once  in  each  week  for  thi-ee  weeks  successively,  in  some  news- 
paper published  in  this  state,  most  convenient  to  the  piace  where  the  court  is  held, 
of  such  attachment,  and  at  whose  suit,  against  whose  estate,  for  what  sirm,  and  be- 
fore what  comt  the  same  is  pending,  and  that  unless  the  defendant  shall  appear, 
give  bail,  and  plead  within  the  time  limited  for  his  appearance  in  such  case,  judg- 
ment will  be  entered,  and  the  estate  so  attached  will  l^e  sold.  And  such  clerk 
shall,  within  ten  days  after  the  first  jJublication  of  such  notice,  send  a  copy  thereof, 
by  mail,  addressed  to  such  defendant,  if  the  place  of  residence  is  stated  in  such 
affidavit;  and  the  certificate  of  the  clerk,  that  he  has  sent  such  notice,  in  pursu- 
ance of  this  section,  shall  be  evidence  of  that  fact. 

§  23. — N'o  default  or  proceedings  shall  be  taken  against  any  defendant  not 
served  with  summons,  unless  he  shall  appear,  until  the  expiration  of  ten  days  after 
the  last  publication  as  aforesaid. 

§  24. — If,  for  want  of  due  publication  or  service,  the  cause  shall  be  continued, 
the  same  proceedings  shall  be  had  at  a  subsequent  term  of  the  court,  as  might  have 
been  had  at  the  term  at  which  the  writ  is  returnable. 

§  25.^ — The  declaration  shall  be' filed  on  the  retm-n  of  the  attachment,  or  at  the 
term  of  the  court  when  the  same  is  made  returnable.  If  the  declaration  is  not  so 
filed,  the  defendant  may,  in  the  discretion  of  the  com-t,  have  the  suit  dismissed. 

§  2G. — The  practice  and  pleadings  in  attachment  suits,  except  as  otherwise  pro- 
vided in  this  act,  shall  conform,  as  near  as  may  be,  to  the  practice  and  pleadings 
in  other  suits  at  law. 

§  27. — The  defendant  may  plead,  traversing  the  facts  stated  in  the  affidavit 
upon  which  the  attachment  issued,  which  jilea  shall  be  verified  by  affidavit;  and  if, 
upon  the  trial  thereon,  the  issue  shall  be  found  for  the  plaintiff,  the  defendant  may 
plead  or  demur  to  the  action  as  in  other  cases,  but  if  found  for  the  defendant,  the 
attachment  shall  be  quashed,  and  the  costs  of  the  attachment  shall  be  adjudged 
against  the  plaintiff,  but  the  suit  shall  proceed  to  final  judgment  as  though  com- 
menced by  summons. 

§  28. — No  writ  of  attachment  shall  be  quashed,  nor  the  property  taken  thereon 
restored,  nor  any  garnishee  discharged,  nor  any  bond  by  him  given  canceled,  nor 
any  rule  entered  against  the  sheriff  discharged,  on  account  of  any  insufticiency  of 
the  original  affidavit,  writ  of  attachment  or  attachment  bond,  if  the  plaintiff,  or 
some  credible  person  for  him,  shall  cause  a  legal  and  siifficient  affidavit  or  at- 
tachment bond  to  be  filed,  or  the  writ  to  be  amended,  in  such  time  and  manner  as 
the  court  shall  direct;  and  in  that  event  the  cause  shall  proceed  as  if  such  iiroceed- 
ings  had  originally  been  sufficient. 

§  29. — In  all  cases  of  attachment,  any  person,  other  than  the  defendant,  claim- 
ing the  property  attached,  may  interplead,  verifying  hia  plea  by  affidavit,  without 
II  Attachmkst— 7. 


498  ILLINOIS. 

giving  bail,  but  tbe  property  attached  shall  not  thereby  be  replevied;  and  the  court 
bIkiII  imniediatelj'  (unless  good  cause  be  shown  by  either  party  for  a  continuance) 
direct  a  jury  to  be  impanneled  to  inquire  into  the  right  of  property.  In  all  cases 
where  the  jury  find  for  a  claimant,  such  claimant  shall  be  entitled  to  his  costs; 
and  where  the  jury  find  for  the  plaintiff  in  the  attachment,  such  plaintiff  shall 
recover  his  costs  against  such  claimant.  If  such  claimant  is  a  non-resident  of  the 
state,  he  shall  file  secm-ity  for  costs  as  in  case  of  non-resident  plaintiff. 

§  30. — Any  defendant  against  whom  an  attachment  may  be  sued  out  under  this 
act,  may  avail  himself  in  his  defense  of  any  set-off  property  pleadable  by  the  laws 
of  this  state. 

§  31. — The  plaintiff  in  any  action  of  debt,  covenant  or  trespass,  or  on  the  case 
upon  piromises,  having  commenced  an  action  by  summons  or  capias,  may,  at  any 
time  pending  such  suit,  and  before  judgment  therein,  on  filing  in  the  office  of  the 
clerk  where  such  action  is  pending  a  sufiicient  bond  and  affidavit  showing  his  right 
to  an  attachment  under  the  first  section  of  this  act,  sue  out  an  attachment  against 
.  the  lands,  goods,  chattels,  rights,  moneys,  credits  and  effects  of  the  defendant, 
which  attachment  shall  be  entitled  in  the  suit  pending,  and  be  in  aid  thereof;  and 
such  proceedings  shall  be  thereupon  had  as  are  recjuired  or  permitted  in  original 
attachments,  as  near  as  may  be:  Provided,  this  section  shall  not  apply  to  actions 
of  trespass,  or  cases  in  which  the  defendant  has  been  arrested  and  has  given  special 
bail:  And  provided  further,  that  in  all  actions  of  trespass,  and  trespass  on  the 
case,  before  a  writ  of  attachment  shall  be  issued,  the  plaintiff,  his  agent  or  attor- 
ney, shall  apply  to  a  judge  of  a  court  of  record  or  a  master  in  chancery  of  the 
county  in  which  the  suit  is  pending,  and  be  examined,  under  oath,  by  such  judge 
or  master  concerning  the  cause  of  action;  and  thereupon  such  judge  or  master 
shall  indorse  upon  the  aflSdavit  the  amoiint  of  damages  for  which  the  writ  shall 
issue,  and  no  greater  amount  shall  be  claimed. 

§32. — In  all  cases  when  a  scire  facias  shall  be  sued  out  of  any  court  of  this 
state,  to  make  any  person  party  to  any  judgment  that  has  been  or  hereafter  may 
be  rendered  therein,  writs  of  attachment  may  be  issued  in  aid  thereof,  against  any 
one  or  all  persons  named  in  such  scire  facias,  to  any  county  of  this  state,  upon 
the  terms  provided  in  this  act;  and  the  parties  in  such  virrits  of  attachment  maybe 
brought  in  by  notice  as  in  other  cases  of  attachment,  when  personal  service  can- 
not be  had. 

§  33. — Upon  the  return  of  attachments  issued  in  aid  of  actions  pending,  unless 
it  shall  appear  that  the  defendant  or  defendants  have  been  served  with  process  in 
the  original  cause,  notice  of  the  dependency  of  the  suit,  and  of  the  issue  and  levy 
of  the  attachment,  shall  be  given  as  is  reciuired  in  cases  of  original  attachment;  and 
such  notification  shall  be  sufficient  to  entitle  the  plaintiff  to  judgment,  and  the 
right  to  proceed  thereon  against  the  property  and  estate  attached,  and  against  gar- 
nishees, in  the  same  manner  and  with  like  effects  as  if  the  suit  had  been  com- 
menced by  attachment. 

§  34. — When  the  defendant  has  been  served  with  the  writ,  or  appears  to  the 
action,  the  judgment  shall  have  the  same  force  and  effect  as  in  suits  commenced  by 
summons;  and  execution  may  issue  thereon,  not  only  against  the  property  attached, 
but  the  other  i^roi^erty  of  the  defendant. 

§  35. — When  the  defendant  shall  be  notified  as  aforesaid,  but  not  served  with 
process,  and  shall  not  appear  and  answer  the  action,  judgment  by  default  may  be 
entered,  which  may  be  jn'oceeded  upon  to  final  judgment  as  in  other  cases  of  de- 
fault, but  in  no  case  shall  judgment  be  rendered  against  the  defendant  for  a  greater 
sum  than  appears,  by  the  affidavit  of  the  jjlaintiff,  to  have  been  due  at  the  time 
of  obtaining  the  attachment,  with  interest,  damages  and  costs;  and  such  judg- 
ment shall  bind,  and  a  special  execution  shall  issue  against  the  property,  credits 
and  efi'ects  attached,  and  no  execution  shall  issue  against  any  other  property 
of  the  defendant;  nor  shall  such  judgment  be  any  evidence  of  debt  against  the 
defendant  in  any  subsequent  suit. 

§30. — The  property  attached  maybe  levied  upon  by  execution  issued  in  the 
attachment  suit,  whether  in  the  hands  of  the  officer  or  secured  by  bond  as  pro- 
vided in  this  act,  and  shall  be  sold  as  other  projoerty  levied  upon  by  execution. 

§  37. — All  judgments  in  attachments  against  the  same  defendant,  returnable  at 
the  same  term,  and  all  judgments  in  suits  by  summons,  capias  or  attachment 
against  such  defendant,  recovered  at  that  term  or  at  the  term  Avhen  the  judgment  in 
the  first  attachment  upon  which  judgment  shall  be  recovered  is  rendered  shall 
share,  2^'>'orata,  according  to  the  amount  of  the  several  judgments,  in  the  proceeds 
of  the  property  attached,  either  in  the  hands  of  a  garnishee  or  otherwise:  Fro- 


ILLINOIS.  499 

vidcd,  when  the  property  is  attached  while  the  defendant  is  removing  the  same  or 
after  the  same  has  been  removed  from  the  county,  and  the  same  is  overtaken  and 
returned,  or  while  the  same  is  secreted  by  the  defendant,  or  put  out  of  his  hands  for 
the  iiurpose  of  defrauding  his  creditors,  the  court  may  allow  the  creditor  or  creditors 
through  whose  diligence  the  same  shall  have  been  secured  a  priority  over  other 
attachments  or  judgment  creditors. 

§38. — Upon  issuing  execution  against  any  property  attached,  the  proceeds  of 
which  shall  be  required  to  be  divided,  the  clerk  shall,  at  the  same  time,  make  out 
and  deliver  to  the  sheriff  or  other  officer  to  whom  the  execution  is  issued,  a  statement 
of  all  judgments,  with  costs  thereon,  which  shall  be  entitled  to  share  in  such  pro- 
ceeds, and  when  any  judgment  creditor  shall  have  been  allowed  a  priority  over  the 
other  judgment  creditors,  the  same  shall  be  stated.  Upon  the  receipt  of  such  pro- 
ceeds by  the  sheriff  or  other  officer,  he  shall  divide  and  pay  over  the  same  to  the 
several  judgment  creditors  entitled  to  share  in  the  same  in  the  proportion  they 
shall  be  entitled  thereto. 

§  39. — The  court  may,  at  any  time  before  the  proceeds  of  any  attached  property 
has  been  paid  over  to  the  judgment  creditors,  order  the  whole  or  any  part  thereof 
to  be  paid  into  court,  and  may  make  any  and  all  such  orders  concerning  the  same 
as  it  shall  deem  just. 

§  40. — The  plaintiff  or  defendant  in  any  attachment,  person  interpleading,  and 
the  sheriff  or  either  of  them,  who  may  feel  aggrieved  by  the  judgment  of  the 
court,  may  prosecute  writs  of  error  and  take  appeals  as  by  law  is  provided  in  otSrtr 
cases. 

§  41. — This  act  shall  be  construed  in  all  courts  in  the  most  liberal  manner  for 
the  detection  of  fraud. 

BEFORE  JUSTICES  OP  THE  PEACE. 

§  1. — "Writs  of  attachment  may  be  granted  against  the  personal  estate,  goods, 
chattels,  money,  choses  in  action,  credits  and  effects  of  the  debtor,  by  justices  of 
the  peace,  in  all  civil  actions  cognizable  before  them,  where  the  demand  does  not 
exceed  the  jurisdiction  of  justices  of  the  peace,  for  the  same  causes  as  attach- 
ments may  be  issued  out  of  courts  of  record,  and  upon  filing  with  the  justice  a 
sufficient  .-.ffidavit  and  bond  to  the  defendant  with  sufficient  security,  to  be  ap- 
proved by  the  justice,  in  a  penalty  at  least  double  the  amount  of  the  plaintiff's 
claim,  conditioned  substantially  as  hereinafter  provided. 

§  2. — Affidavits  for  attachment  before  justices  of  the  peace  may  be  substan- 
tially in  the  following  form: 
State  of  Illinois,  county  of ,  ss. 

A.  B.,  lieing  duly  sworn,  says:  That  (here  state  if  affiant  is  agent  or  attorney 
of  the  creditor,  and  if  the  suit  is  by  ."rm,  the  name  of  the  jjartners),  has  a  just 
demand  against  (name  of  debtor),  on  account  of  (here  make  short  statement  of  • 
the  nature  of  the  demand),  and  the  affiant  believes  (the  name  of  the  creditor)  is 
entitled  to  recover  of  said  (name  of  debtor),  after  allowing  all  just  credits  and 

set-offs, dollars  and cents,  which  is  now  due,  and  that  he  has  good 

reason  to  believe  and  does  believe  that  (name  of  debtor),  (here  state  some  one  or 
more  of  the  causes  which  authorize  an  attachment)  the  said  (name  of  debtor,  here 
state  the  name  of  debtor  if  known,  or  if  not,  that  the  affiant  has  made  diligent 
inquiry  and  cannot  ascertain  his  place  of  residence). 

§  3. — The  condition  of  the  bond  shall  be  substantially  as  follows: 

The  condition  of  the  above  obligation  is  such  that,  whereas  the  above  bounden 

— hath,  on  the  day  of  the  date  hereof,  prayed  an  attachment  at  the  suit  of 

against  the  personal  estate  of  the  above-named ,  for  the  sum  of , 

and  the  same  being  about  to  be  sued  out,  returnable  on  the day  of  - — ■ , 

before  (said  justice).     Now  if  the  said shall  i:)rosecute  his  suit  with  effect,  or 

in  case  of  f ailm-e  therein,  shall  well  and  truly  pay  and  satisfy  the  said all 

such  costs  in  such  suit,  and  such  damages  as  the  said may  sustain,  by  reason 

of  WTongfuUy  suing  out  the  said  attachment,  then  the  above  obligation  to  be  void; 
else  to  remain  in  full  force  and  virtue. 

Witness  our  hands  and  seals  this day  of ,  18 — . 

§  4. — The  writ  of  attachment  shall  be  substantially  in  the  following  form: 
State  of  Illinois, county,  ss. 

The  people  of  the  state  of  Illinois,  to  any  constable  of  said  county — greeting: 
Whereas  A.  B.  (or  agent  or  attorney  of  A.  B.,  as  the  case  may  be),  hath  com- 
plained that  E.  F.  is  justly  indebted  to  the  said  A.  B.  in  the  amount  of dol- 
lars; and  that  the  said  E.  F,  (here  state  the  cause  as  in  the  affidavit),  and  the  said 


500  ILLINOIS. 

A.  B.  having  given  bond  and  security  according  to  law:  "We,  therefore,  command 
you  that  you  attach  so  much  of  the  personal  estate  of  the  said  E.  F.  to  be  found 
in  your  county  as  shall  be  of  value  sufScient  to  satisfy  the  said  debt  and  costs;  and 
such  personal  estate  so  attached,  in  your  hands  to  secure,  or  so  to  provide  that  the 
same  may  be  liable  to  further  proceeding's  thereon,  according  to  law,  before  the 
undersigned  justice  of  the  peace.  And  that  you  summon  the  said  E.  F.  to  appear 
before  me,  at  my  office,  on  the day  of •  next,  and  that  you  also  sum- 
mon, as  garnishees,  all  persons  whom  the  plaintiff  or  his  agent  shall  direct,  to  appear 
before  me  at  the  same  time  and  pilace,  then  and  there  to  answer  what  may  be  ob- 
jected against  him  or  them,  when  and  where  you  shall  make  known  how  you  have 
executed  this  writ;  and  have  you  then  and  there  this  writ. 

Given  under  my  hand  and  seal  this day  of ,  18 — . 

C.  D.,  Justice  of  the  Peace,     [seal.] 

§  5. — The  writ  of  attachment  shall  be  made  returnable  not  less  than  five  nor 
more  than  thirty  days  from  the  date  thereof. 

§  6.  The  constable  to  whom  any  attachment  may  be  delivered  shall,  without 
delay,  execute  the  same,  by  levying  on  the  personal  estate,  goods,  chattels,  moneys, 
choses  in  action,  credits  and  effects  of  the  defendant,  of  value  sufficient  to  satisfy 
the  debt  or  damages  claimed  to  be  due,  and  all  costs  attending  the  collection  of  the 
same.  He  shall  also  read  the  same  to  the  defendant,  if  he  can  be  found  in  the 
county,  and  also  to  such  persons  as  the  plaintiff  or  his  agents  shall  direct  to  be 
summoned  as  garnishees,  and  make  return  thereof,  stating  how  he  has  executed 
the  same. 

§  7. — If  the  defendant,  or  any  other  person  for  him,  shall  be  in  the  act  of 
removing  such  personal  property,  the  officer  may  jjursue  and  take  the  same,  in  any 
county  in  this  state,  and  convey  the  same  to  the  coxmty  from  which  such  attach- 
ment issued. 

§  8. — Upon  the  return  of  any  attachment  issued  by  a  justice  of  the  peace,  if  it 
shall  appear  that  the  defendant  has  been  personally  served  with  the  same,  or  if 
such  defendant  shall  appear  ^vithout  such  service,  the  justice  shall  proceed  to  hear 
and  determine  the  cause,  as  in  cases  of  proceeding  by  summons. 

§  9. — But  if  it  does  not  appear  that  the  defendant  has  been  served,  and  no  ap- 
pearance be  entered  by  the  defendant,  the  justice  shall  continue  the  case  not  les3 
than  fifteen  days,  and  shall  immediately  prepare  a  notice,  to  be  posted  up  at  three 
public  places  in  the  neighborhood  of  the  justice,  directed  to  the  defendant,  and 
stating  the  fact  that  an  attachment  had  been  issued,  and  at  whose  instance,  the 
amount  claimed  to  be  due,  and  the  time  and  place  of  trial;  and  also  stating,  that 
unless  the  said  defendant  shall  appear  at  the  time  and  place  fixed  for  trial,  judg- 
ment will  be  entered  by  default,  and  the  property  attached  ordered  to  be  sold  to 
satisfy  the  same — which  notice  shall  be  delivered  to  the  constable,  who  shall  post 
three  copies  of  the  same  at  three  public  places  in  the  ueighljorhood  of  the  justice, 
at  least  ten  days  before  the  day  set  for  trial.  And  if  the  place  of  residence  of 
the  defendant  is  stated  in  the  affidavit  for  the  attachment,  shall,  at  the  same  time, 
mail  one  copy  of  the  notice  addressed  to  such  defendant,  at  such  place  of  resi- 
dence; and  on  or  before  that  day  he  shall  return  the  notice  delivered  to  him  by  the 
justice,  with  an  indorsement  thereon,  stating  the  time  when  and  the  places  where 
be  posted  and  mailed  copies  as  herein  reqiured. 

§  10. — If  notice  shall  not  be  given  according  to  law,  or  for  any  other  good  cause, 
the  justice  may  continue  the  case  from  time  to  time  till  proper  notice  shall  have 
been  given  or  the  case  is  ready  for  trial. 

§  11. — When  notice  shall  be  given  of  any  proceeding  by  attachment,  as  re- 
quired by  the  ninth  section  of  this  act,  the  justice  shall,  on  the  day  set  for  trial  of 
the  cause,  proceed  to  hear  and  determine  the  same,  as  though  process  had  been 
l^ersonally  served  upon  the  defendant,  and  if  judgment  be  given  against  the  defend- 
ant, shall  order  a  sale  of  the  property  attached,  or  so  much  thereof  as  will  satisfy 
the  judgment  and  all  costs  of  the  suit. 

§  12.— When  an  attachment  shall  be  returned  served  upon  any  person  as  gar- 
nishee, the  justice  shall  make  an  entry  upon  the  record  of  his  proceedings  in  the 
cause,  stating  the  name  of  each  person  summoned,  and  continue  the  case  as  to  such 
garnishee,  and  shall  i^roceed  v\-itli  the  cause  as  against  the  defendant  in  the  attach- 
ment, as  though  the  attachment  had  been  levied  on  personal  property. 

§  13. — When  judgment  is  entered  by  a  justice  of  the  peace  against  a  defendant 
in  attachment,  and  any  person  has  been  summoned  as  garnishee  in  the  case,  it  shall 
be  the  duty  of  the  justice  to  issue  a  summons  against  the  person  so  summoned,  re- 


ILLINOIS.  501 

quiring  him  to  appear  before  the  justice,  at  a  time  and  place  to  be  fixed  in  the 
summons,  not  less  than  five  nor  more  than  fifteen  days  from  the  date  thereof,  then 
and  there  to  answer  upon  oath  what  amount  he  is  indebted  to  the  defendant  in  the 
attachment,  or  what  property,  choses  in  action  or  effects  belonging  to  the  defend- 
ant, or  in  which  he  has  any  interest,  or  he  had  in  his  possession  or  power  at  the 
time  of  serving  the  attachment. 

§  14. — The  further  proceedings  against  garnishees  shall  be  had  in  pursuance  to 
the  act  on  garnishments. 

§15. — The  provisions  of  law  governing  attachments  in  courts  of  record  shall 
apjily  to  attachments  before  justices  of  the  peace,  so  far  as  the  same  was  applica- 
ble and  not  inconsistent  with  the  provisions  which  are  especially  applicable  to  the 
latter:  Provided,  this  section  shall  not  be  construed  to  require  of  either  party  to 
file  written  jileadings  in  any  attachment  before  a  justice  of  the  peace. 

§  IG.  — Exceptions  to  the  bond  taken  by  the  constable  shall  be  taken  at  or  before 
the  first  hearing  of  the  case  after  the  same  shall  have  been  retm-ned  to  the  justice, 
but  the  hearing  of  such  exceiitions  may  be  adjourned  for  the  purpose  of  giving 
notice  to  the  constable,  or  for  other  good  cause. 

§  17. — Appeals  may  be  taken  in  cases  of  attachment  before  justices  of  the 
peace,  Lu  the  same  manner  as  in  cases  by  summons  before  justices  of  the  peace 

ATTACHMENT   OF  WATER-CRAFT. 

§  1. — Every  sail- vessel,  steamboat,  steam-dredge,  tug-boat,  scow,  canal-boat, 
barge,  lighter,  and  other  water-craft  of  above  five  tons  burthen,  used  or  intended 
to  be  used  iu  navigating  the  waters  of  canals  of  this  state,  or  used  in  trade  and 
commerce  between  ports  and  places  within  this  state,  or  having  their  homo  p)ort  in 
this  state,  shall  be  subject  to  a  lien  thereon,  which  lien  shall  extend  to  the  tackle, 
apparel  and  furniture  of  such  craft,  as  follows: 

First.  For  all  debts  contracted  by  the  owner  or  part  owner,  master,  clerk, 
steward,  agent  or  ship's-husband  of  such  craft,  on  account  of  supplies  and  provi- 
sions furnished  for  the  use  of  such  water-craft  on  account  of  work  done  or  serv- 
ices rendered  on  board  of  such  ci-aft  by  any  seaman,  master  or  other  emploj^ee 
thereof,  or  on  account  of  work  done  or  material  furnished  by  mechanics,  trades- 
men or  others,  in  or  about  the  building,  repau-ing,  fitting,  furnishing  or  equipping 
such  craft. 

Second.  For  all  sums  due  for  wharfage,  anchorage  or  dock-hire,  including  the 
use  of  dry  docks. 

Third.  For  sums  clue  for  towage,  labor  at  pumping  out  or  raising,  when  sunk 
or  disabled,  and  to  ship's  husband  or  agent  of  such  water-craft,  for  disbursements 
due  by  the  owner  on  account  of  such  water-craft. 

Fourth.  For  all  damages  arising  from  the  non-performance  of  any  contract  of 
affreightment,  or  of  any  contract  touching  the  transportation  of  property  entered 
into  by  the  master,  owner,  agent  or  consignee  of  such  water-craft,  where  any  such 
contract  is  made  in  this  state. 

Fifth.  For  all  damages  arising  from  injuries  done  to  persons  or  property  liy 
such  water-craft,  whether  the  same  are  aboard  said  vessel  or  not,  where  the  same 
shall  have  occurred  through  the  negligence  or  misconduct  of  the  owner,  agent,  mas- 
ter or  employee  thereon;  but  said  craft  shall  not  be  liable  for  any  injury  or  damage 
received  by  one  of  the  crew  from  another  member  of  the  crew. 

§  2. — There  shall  also  be  a  lien  upon  the  goods,  wares  and  merchandise  shipped, 
taken  in  and  put  aboard  any  such  water-craft  for  sums  due  for  freight,  advanced 
charges  and  demurrage,  which  .shall  be  collected  against  said  goods,  wares  and 
merchandise  in  the  same  manner  as  hereinafter  provided  in  this  act  in  cases  of 
emns  due  against  said  water-craft. 

§  .3. — Any  such  lien  may  be  enforced  in  the  manner  herein  provided  at  any  time 
within  five  years:  Provided,  no  creditor  shall  be  allowed  to  enforce  such  lien  as 
against,  or  to  the  i>rejudice  of  any  other  creditor  or  subsequent  incumbrancer,  or 
bona  Jide  purcliaser,  unless  proceedings  be  instituted  to  enforce  such  lien  within 
rune  months  after  the  indebtedness  accrues  or  becomes  due. 

§  4. — The  person  claiming  to  have  a  lien  under  the  provisions  of  this  act  may 
file  with  the  clerk  of  any  court  of  record  of  competent  jurisdiction,  in  the  county 
where  any  such  water-craft  may  be  found,  a  petition,  setting  forth  the  nature  of  his 
claim,  the  amount  due  after  allowing  all  payments  and  just  offsets,  the  name  of 
the  water  craft,  and  the  name  and  residence  of  each  owner  kno\vn  to  the  peti- 
tioner, and  when  any  owner  or  his  place  of  residence  is  not  kno'wn  to  the 
petitioner,  he  shall  so  state,  and  that  he  has  made  inquiry  and  is  imable  to  ascer- 


502  ILLINOTS. 

tain  the  same;  which  petition  shall  be  verified  by  affidavit  of  the  petitioner  or  his 
agent  or  attorney.  If  the  claim  is  upon  an  account  or  instrument  ia  writing,  a 
copy  of  the  same  shall  be  attached  to  the  petition. 

§  5. — The  petitioner  or  his  agent  or  attorney  shall  also  file  with  such  petition  a 
bond,  payable  to  the  owner  of  the  craft  to  be  attached,  or,  if  unknown,  to  the 
unknown  owners  thereof,  in  at  least  double  the  amount  of  the  claim,  with  security 
to  be  approved  by  the  clerk,  conditioned  that  the  i^etitioner  shall  prosecute  lii3 
suit  with  effect,  or,  in  case  of  failure  therein,  will  pay  all  costs  and  damages  which 
the  owner  or  other  person  interested  in  such  water-craft  may  sustain,  in  conse- 
quence of  the  ■wrongful  suing  out  of  such  attachment,  which  bond  may  be  sued  by 
any  o^\"ner  or  person  interested,  in  the  same  manner  as  if  it  had  been  given  to  such 
person  by  his  proper  name.  Only  such  persons  shall  be  required  to  join  in  such 
suit  as  have  a  joint  interest;  others  may  allege  breaches  and  have  assessment  of 
damages,  as  in  other  cases  of  suits  on  penal  bonds. 

§  6. — Upon  the  filing  of  such  petition  and  bond  as  aforesaid,  the  clerk  shall 
issue  a  wi-it  of  attachment  against  the  owner  of  such  water-craft,  directed  to  the 
sheriff  of  this  county,  commanding  him  to  attach  such  water-craft,  which  writ  shall 
be  tested  and  returnable  as  other  writs  of  attachment.  Such  owners  may  be  desig- 
nated by  their  reputed  names,  by  surnames,  and  joint  defendants  by  their  separate 
or  partnership  names,  or  by  such  names,  styles  or  titles  as  they  are  usually  kiiown. 
If  the  name  of  any  owner  is  unknown,  he  may  be  designated  as  unknown  owner. 

§  7. — The  writ  shall  be  substantially  in  the  following  form: 
State  of  Illinois, county,  ss. 

The  people  of  the  state  of  Illinois  to  the  sheriff  of  county — ^greeting: 

Whereas (name  of  the  petitioner),  hath  complained  that  the  owners  of  the 

(name  of  the  vessel),  are  justly  indebted  to  him  in  the  sum  of dol- 
lars (amount  due),  for  which  he  claims  a  lien  upon  said  vessel,  and  has  given  bond 
with  security  as  required  by  law:  We  therefore  command  you  that  you  attach  the 

said  (name  of  vessel),  ■  her  tackle,  apparel  and  furniture,  to  satisfy  such 

demand  and  costs,  and  all  such  demands  as  shall  be  exhibited  against  such  vessel 

according  to  law,  and  having  attached  the  same  you  summon (here  insert 

the  names  of  owners  of  such  vessel),  owners  of  such  vessel,  to  be  and  appear  before 

the court  of at  its  next  term,  to  be  holden  at  the  court-house  in  said 

county,  on  the day  of ,  then  and  there  to  answer  what  may  be  objected 

against  them  and  the  said (name  of  vessel).     And  have  you  then  and  there 

this  writ,  'with  a  return  thereon  in  what  manner  you  have  executed  the  same. 

Witness, clerk  of  court,  and  the  seal  thereof,  this  day 

of ,  A.  D.  18  -.  •      ,  Clerk. 

§  8. — The  sheriff  or  other  officer  to  whom  such  MTit  shall  be  directed  shall  forth- 
with execute  the  same  by  reading  the  same  to  such  defendants,  and  attaching  the 
vessel,  her  tackle,  apparel  and  fm-niture,  and  shall  keep  the  same  until  disposed  of 
as  hereinafter  provided.  Such  sheriff  or  other  officer  shall  also,  on  or  before  the 
return  day  in  such  writ,  or  at  any  time  after  the  service  thereof,  upon  the  request 
of  the  petitioner,  make  a  retiu-n  to  said  court,  stating  therein  particularly  his 
doings  in  the  premises,  and  shall  make,  subscribe  and  annex  thereto  a  just  and 
true  inventory  of  all  the  property  so  attached. 

§  9. — Whenever  any  such  writ  shall  be  issued  and  served,  no  other  attachment 
shall  issue  against  the  said  water-craft,  unless  the  first  attachment  is  discharged,  or 
the  vessel  is  bonded. 

§  10. — Upon  return  being  made  to  such  writ,  unless  the  vessel  has  been  bonded, 
as  hereinafter  provided,  the  clei-k  shall  immediatul}'  cause  notice  to  be  given  in  the 
same  manner  as  required  in_  other  cases  of  attachment.  The  notice  shall  contain, 
in  addition  to  that  required  in  other  cases  of  attachment,  a  notice  to  all  persons  to 
intervene  for  their  interests  on  a  day  certain,  or  that  said  claim  will  be  heard  ex 
parte. 

§  11.  —Any  person  having  a  lien  upon  or  any  interest  in  the  water-craft  attached 
may  intervene  to  protect  such  interest,  by  filing  a  petition  as  hereinbefore  pro- 
vided, entitled  an  intervening  petition;  and  any  person  interested  may  be  made  a 
defendant  at  the  request  of  himseli  or  any  party  to  the  suit,  and  may  defend  any 
petition  by  filing  an  answer  as  hereinafter  provided,  and  giving  security  satisfactory 
to  the  court,  to  pay  any  costs  arising  froni  such  defense;  and  upon  the  filing  oi  any 
interveninci  petition,  a  summons,  as  hereinbefore^  provided,  shaL  issue,-  and  if  the 
sarae  shall  be  returned  not  served,  notice  by  publication  may  be  given  as  aforesaid; 
and  several  intervening  petitioners  may  be  imited  with  each  other,  or  the  originaj^ 
in  one  notice. 


ILLINOIS.  503 

§  12. — Any  person  intervening  to  enforce  any  lien  or  claims  adverse  to  the  own- 
ers of  the  craft  attached  shall,  at  the  time  of  filing  his  i^etition,  file  with  the  clerk 
a  bond  as  in  the  case  of  original  attachment. 

§  13.— Intervening  petitions  may  be  filed  at  any  time  before  the  vessel  is 
bonded,  as  provided  in  section  fifteen  (15) ;  or,  if  the  same  is  not  so  bonded,  before 
order  for  distribution  of  the  proceeds  of  the  sale  of  the  craft.  And  the  same 
proceeding  shall  thereupon  be  had  as  in  the  case  of  claims  filed  before  sale. 

§  14. — All  liens  upon  any  water-craft  which  shall  not  be  filed  hereunder  before 
sale  under  decree  or  judgment,  as  hereinafter  provided,  shall  cease. 

§  15. — The  o^vner,  or  his  agent  or  attorney,  or  any  other  person  interested  in 
such  water-craft,  desiring  the  return  of  the  property  attached,  having  first  given 
notice  to  the  petitioner,  his  agent  or  attorney,  of  his  intention  to  bond  the 
same,  may,  at  any  time  before  judgment,  file  with  the  clerk  of  the  court,  in  which 
the  suit  is  pending,  a  bond  to  the  parties,  having  previously  filed  petitions  against 
such  craft,  in  a  jienalty  at  least  double  the  aggi-egate  of  all  sums  alleged  to  be  due 
the  several  petitioners,  with  security  to  be  appiroved  by  the  clerk,  conditioned  that 
the  obligors  will  j)ay  all  moneys  adjudged  to  be  due  such  claimant,  with  costs  of 
suit. 

§  16. — If  the  owner,  or  his  agent  or  attorney,  or  other  party  in  interest,  so  elect, 
in  place  of  bonding,  as  aforesaid,  he  may  apply  to  the  court  or  judge  thereof,  u]3on 
like  notice  as  aforesaid,  for  an  order  of  appraisement  of  such  water-craft  so  seized, 
by  three  competent  jiersons  to  be  appointed  by  the  court  or  judge  thereof  and 
named  in  the  order,  and  upon  such  i^arty  depositing  with  the  clerk  the  amount  of 
such  appraisement  in  money,  or  executing  or  filing  with  him  a  bond  for  said 
amount,  executed  as  provided  in  the  loreceding  section,  it  shall  be  the  duty  of  the 
clerk  to  issue  an  order  of  restitution,  as  provided  in  the  next  section,  and  if  the 
claimant  of  such  water-craft  shall  decline  any  such  application,  or  neglect  within 
twenty  days  to  accept  such  appraisement  and  make  the  deposit,  or  give  the  bond 
aforesaid,  or  the  property  seized  shall  be  liable  to  decay,  depreciation  or  injury 
from  delay,  the  court,  in  its  discretion,  may  order  the  same  or  part  thereof  to  be 
sold,  and  the  proceeds  thereof  to  be  brought  into  court  to  abide  the  event  of  the 
suit. 

§  17. — Upon  receiving  a  bond  or  deposit,  as  provided  in  either  of  the  foregoing 
sections,  it  shall  be  the  duty  of  the  clerk  to  issue  an  order  of  restitution,  directing 
the  officer  who  attached  the  water-craft  to  deliver  the  same  to  the  person  from 
whose  possession  the  same  was  taken,  and  said  water-craft  shall  thenceforth  be 
discharged  from  all  the  liens  secured  by  such  bond  or  deposit,  unless  the  court  or 
judge  thereof,  upon  motion,  shall  order  the  same  again  into  custody  on  account  of 
the  insufficiency  or  insolvency  of  the  sxirety. 

§  18. — If  any  petitioner  shall,  at  any  time,  become  satisfied  that  his  security  is 
insufficient,  or  has  become  imperiled,  he  may,  by  motion  founded  upou  affidavit 
filed,  and  upon  notice  ser^'ed  with  copy  of  such  affidavit  and  motion,  move  the  court 
to  direct  tne  giving  of  additional  security,  which  motion  shall  be  summarily  heard 
and  determined,  and  such  order  made  therein  as  justice  shall  require;  and  the  coTirt 
shall  have  power  to  ei;f orce  all  orders  so  made  by  attachment  for  contemi^t  against 
persons,  or  ■writ  against  such  water-craft,  or  otherwise. 

§  19. — Within  three  days  after  the  return  day  of  such  summons — if  personally 
served,  ten  days  before  the  first  day  of  the  term  to  which  it  is  returnable,  or  if  not 
personally  served,  then  within  the  time  prescribed  in  the  published  notice — the 
©■wner  or  any  person  interested  adversely  to  the  claims  mentioned  in  the  notice, 
unless  on  cause  sho^\^l,  further  time  shall  be  allowed  by  the  coiirt,  shall  except, 
demur  or  file  his  answer  upon  oath  or  affirmation.  The  answer  shall  be  full  and 
distinct  to  each  allegation  of  the  petition,  but  such  answer  shall  not  have  the  effect 
of  a  swoi'n  answer  in  chancery  as  evidence.  At  the  time  of  filing  an  exception, 
demurrer  or  answer,  an  affidavit  of  the  claimant,  or  his  agent  or  attorney,  shall  be 
filed,  stating  that  the  claimant  has  a  good  defense  upon  the  merits.  And  in  case 
no  such  excejition,  demurrer  or  answer,  together  with  such  affidavit  of  merits,  be 
filed  within  the  time  above  specified,  the  petitioner  shall  be  entitled  to  a  default, 
and  the  demand  may  be  proved  and  judgment  rendered  as  in  other  cases. 

§  20. — Amendments  may  be  allowed  as  in  other  cases  and  upon  like  terms  and 
conditions,  and  the  court  may  take  all  proceedings  and  make  all  orders  necessary 
to  fully  dispose  of  the  rights  of  all  persons  interested  in  the  property  attached,  and, 
for  that  pmpose  may  add  new  parties  whenever  necessary,  who  may  be  summoned 
or  notified  as  in  case  of  original  defendants. 


504  ILLINOIS. 

§  21. — If,  upon  trial,  judgment  shall  pass  for  tlie  petitioner,  and  the  water-craft 
has  been  discharged  from  custody  as  herein  j^rovided,  said  judarment  or  decree  shall 
be  rendered  against  the  principal  and  sureties  in  the  bond:  Providei,  that  in  no 
case  s!iall  the  judgment  exceed  the  penalty  of  the  bond,  and  the  subsequent  pro- 
ceedings shall  be  the  same  as  now  provided  by  law  in  personal  action?  in  the  courts 
of  record  in  this  state.  If  the  release  has  been  upon  deposit,  the  judgment  shall 
be  paid  out  of  said  dei:)osit. 

§  22. — In  case  the  water-craft  has  not  been  discharged  from  custody,  th-;  iudg- 
ment  or  decree  shall  be  that  the  same,  with  the  appurtenances,  be  sold  at  public 
vendue  by  the  sheriff,  after  notice  of  the  time  and  place  of  said  sale,  publi-jhed  as 
herein  required  in  cases  of  seizure,  at  least  ten  days  before  such  sale:  Provided, 
that  in  case  of  petition  filed  prior  to  distribution,  the  judgment  shall  be  for  pay- 
ment out  of  the  proceeds  of  sale,  and  in  case  of  claims  filed  against  surplus  pro- 
ceeds, the  judgment,  if  in  favor  of  the  i^etitioner,  shall,  in  substance,  affirm  the 
claim  to  be  sustained,  and  direct  payment  thereof  from  the  surplus  proceeds. 

§  2.3. — The  clerk  shall  thereiipon  issue  an  order  of  sale,  commanding  the  sheriff 
to  sell  such  water-craft  as  directed  in  the  judgment,  and  to  return  said  writ  within 
twenty-four  hours  after  sale,  with  his  doings  in  the  premises,  and  with  proof,  by 
affidavit,  of  the  requisite  notice,  with  a  copy  of  such  notice. 

§  24. — It  shall  be  the  dutj''  of  the  sheriff,  upon  receiving  the  amount  of  the  bid 
at  any  sale,  either  before  or  after  judgment,  from  the  purchaser,  or  in  ca^e  the 
purchaser  is  petitioner  or  an  intervenor,  upon  receiving  so  much  of  the  bid  as  the 
court  or  judge  thereof  shall  direct  by  special  order,  refere'ice  being  had  to  the  rela- 
tive amount  of  the  buyer's  claim,  to  deliver  such  water-craft  and  appurtenances  to 
the  purchaser,  with  a  bill  of  sale  thereof,  and  to  return  and  to  deliver  to  the  clerk 
the  amount  by  him  received  on  such  sale. 

§  2.5.— A  copy  of  the  last  enrollment,  if  any,  of  such  water-craft  shall  be  re- 
cited in  the  bill  of  sale,  if  such  copy  can  be  obtained,  and  a  copy  of  the  judgment, 
with  the  order  of  sale,  or  if  such  craft  is  sold  pursuant  to  an  order  before  judg- 
ment, a  coi^y  of  such  order  shall  also  be  recited  in  such  bill  of  sale,  certified  by 
the  clerk,  under  the  seal  of  the  court;  and  such  bill  of  sale  shall  be  full  and  com- 
plete evidence  of  the  regularity  of  the  judgment  or  order  and  sale,  in  all  courts 
and  places,  and  shall  supersede  the  necessity  of  any  other  proof  thereof  to  vali- 
date said  bill  of  sale;  and  all  bills  of  sale  containing  such  recital,  and  supported  by 
such  proof,  shall  be  effectual  to  j)ass  the  title  of  such  water-craft. 

§23. — The  sum  delivered  by  the  sheriff  to  the  clerk  as  aforesaid  shall  be  dis- 
triljuted  by  the  court  upon  motion  of  any  party  in  interest  of  record,  and  due 
notice  to  the  other  parties,  and  after  the  following  manner: 

Firxt.  The  costs  accruing^  upon  all  complaints  filed  before  distribution,  and  on 
which  judgment  or  decree  is  or  may  be  thereafter  rendered  in  favor  of  com- 
j)lainant. 

Second.  Seamen's  (which  term  shall  include  the  master)  wages  due  upon  the 
last  two  \oyage"^,  or  if  shipped  by  the  month,  the  last  two  months. 

Third.  All  other  claim-i  filed  prior  to  order  of  distribution  on  which  decree  or 
judgment  may  be  rendered  in  favor  of  complainant,  together  with  whatever  bal- 
ance may  be  due  seamen. 

§  27. — Any  jiortion  of  the  sum  so  paid  by  the  sheriff  to  the  clerk,  or  of  a  deposit 
remaining  after  such  distribution  as  aforesaid,  shall  be  denominated  remnants  and 
surplus  proceeds,  and  where  any  claim  or  complaint  .shall  be  filed  again'>t  the  same 
ai  provided  in  this  act,  distribution  shall  be  directed  by  the  court  after  decree  or 
judgment  upon  motion  and  notice,  a?  provided  in  the  last  section,  and  after  the 
following  order: 

First.  All  costs  upon  claims  passing  into  decree  which  were  filed  after  distri- 
bution. 

Scc'ind.  All  other  liens  enforceable  under  this  act  against  the  water-craft  prior 
to  di-;tribution. 

IViird.  All  claims  upon  mortgages  of  such  water-craft  or  other  incumbrances 
by  the  owner,  in  proportion  to  the  interest  they  cover  and  priority. 

Fourth.  Upon  petition  of  the  creditor,  all  judgments  at  law,  or  decrees  in 
c?iancery  again -t  the  owner,  and  wliich  ought  equitably  to  be  paid  out  of  the  pro- 
ceeds in  prefei'ence  to  the  owner. 

Fifth.    The  owner. 

§  2S. — In  case  the  sum  for  which  the  water-craft  is  sold  is  sufficient  to  pay  all 
the  claim:-!  filed  before  tlistribution,  with  costs  thereon,  and  an  appeal  is  taken  as 
hereinafter  provided,  the  court  may  order  distribution  of  such  portion  of  the  simi 
brought  on  sale  upon  judgments  unappealed  from  as  may  seem  just  and  proper. 


1 


ILLINOIS.  505 

§  29. — Any  party  complaining'  or  defending,  who  may  think  himself  ag-grieved 
by  the  final  judgment  of  the  court,  may  appeal  therefrom  to  the  supreme  court,  or 
may  prosecute  a  writ  of  error  in  the  same  manner  as  apxjeals  or  writs  of  error  are 
taken  or  prosecuted  in  other  cases. 

BEFORE  JUSTICES   OP  THE  PEACE. 

§  30. — In  an  action  brought  before  a  justice  of  the  peace  against  the  owner  of 
any  boat  to  recover  any  deljt  contrS^cted  Ijy  such  owner,  or  by  the  master,  agent, 
clerk  or  consignee  thereof,  for  sujiplies  furniihed  or  for  labor  done  in,  abiiut  or  on 
such  boat,  or  for  materials  furnished  in  building,  repairing,  fitting  out,  furnishing 
or  equipping  the  same,  or  to  recover  for  the  non-j)erformance  of  any  contract  rela- 
tive to  the  transportation  of  persons  or  property  thereon,  made  by  any  of  the  per- 
sons aforesaid,  or  to  recover  injuries  to  persons  or  proj)erty  by  such  boat,  or  the 
officers  or  the  crew  thereof,  done  in  connection  with  the  business  of  such  boat,  an 
attachment  may  issue  against  such  boat  as  hereinafter  provided. 

§  31. — Before  the  commencement  of  the  action  the  plaintiff,  his  arrent  or  attor- 
nej%  shall  file  with  the  justice  an  affidavit,  which  may  be  substantially  in  the  fol- 
lowing form: 

State  of  Illinois,  ■  county,  ss. 

A,  B.  (or  C.  D.,  his  agent  or  attorney),  being  duly  sworn,  says:  That  A.  B., 
the  plaintiff,  has  a  just  demand  against  E.  F.,  the  defendimt  (if  known,  if  not 
known,  against  the  boat,  naming  it),  on  account  of  (hei-e  make  a  shoi-t  statement  of 
the  nature  of  the  demand,  giving  the  amount  due),  and  the  plaintiff  prays  an 
attachment  therefor. 

§  32.  — The  plaintiff,  his  agent  or  attorney,  shall  file  with  the  affidavit  a  bond, 
as  provided  by  section  five  of  this  act,  as  near  as  may  be,  and  suits  may  be  brought 
on  the  bond  and  proceedings  had  thereon,  as  said  section  five  x^rovides. 

§  33. — Upon  filing  such  affidavit  and  bond,  the  justice  shall  issue  a  writ  of  at- 
tachment, substantially  in  the  following  form: 
State  of  Illinois, ■ — -  county,  ss. 

The  people  of  the  state  of  Illinois,  to  any  sheriff,  coroner  or  constable  of  said 
county — greeting:  Whereas (name  of  plaintiff,  agent  or  attorney)  hath  com- 
plained that  the  owner  of  the (name  of  boat)  is  justly  indebted  to  plaintiff  in 

the  sum  of — - — ^doUars  (amount  due),  and  has  given  bond  and  security  as  provided 

by  law:  "We,  therefore,  command  youthat  you  attach  said (name  of  boat),  her 

tackle,  apparel  and  furniture,  to  satisfy  such  demand  and  costs,  and  having  attached 

the  same,  you  summon (here  insert  the  name  of  the  owner  of  the  boat,  if  known), 

to  be  and  appear  before  me  at  my  office  in in  said county  and  state, 

on  the day  of ,  18 — ,  at o'clock  —  M.,  then  and  there  to  answer 

what  may  be  objected  against  him  and  the  said (name  of  boat).     And  have 

you  then  and  there  this  writ,  with  a  return  thereon  in  what  manner  you  have 
executed  the  same. 

Given  under  my  hand,  this day  of ,  18 — . 

,J.  P. 

§  34. — The  attachment  may  be  issued  on  Sunday,  if  the  plaintiff,  his  agent  or 
attorney,  shall  state  in  the  affidavit  that  it  would  be  unsafe  to  delay  proceedings 
until  Monday. 

§  35. — It  shall  be  sufficient  to  serve  the  attachment  on  the  defendant,  or  mas- 
ter, agent,  clerk  or  consignee  of  the  boat;  and  if  none  of  them  can  be  found  in  the 
county,  it  shall  be  sufficient  to  serve  the  writ  by  posting  a  copy  thereof  on  the 
boat. 

§  36. — Any  person  interested  in  the  boat  may  appear  by  himself,  agent  or  attor- 
ney, and  defend,  and  no  continuance  shall  be  granted  to  the  ijlaintiff  while  the 
boat  is  held  in  custody. 

§  37. — The  property  attached  may  be  released  at  any  time  before  final  judg- 
ment, by  giving  bond  with  sureties,  to  be  approved  by  the  officer  serving  the  writ, 
in  a  penalty  double  the  plaintiff's  demand,  conditioned  that  the  obligors  therein 
will  pay  the  amount  found  due  to  the  plaintiff,  together  with  costs,  or  return  the 
property  attached  on  execution. 

§  38. — If  judgment  be  rendered  for  the  plaintiff  before  the  property  attached 
is  released,  a  special  execution  shall  be  issued  against  it.  If  the  property  has  been 
released,  the  execution  shall  issue  against  the  obligors  in  the  bond  -without  further 
proceedings.    If  the  jjroperty  be  returned,  it  shall  be  first  sold  on  the  execution. 


606  ILLINOIS. 

§  39. — Tte  officer  may  sell  any  of  the  furniture,  tackle  or  appendages  of  the 
boat,  if  by  so  doing'  he  can  satisfy  the  demand  and  costs.  If  he  sell  the  boat  he 
must  sell  it  to  the  bidder  who  ■will  advance  the  amount  required  to  satisfy  the  exe- 
cution for  the  lowest  fractional  share  of  the  boat.  If  a  fractional  share  of  the 
boat  be  thus  sold,  the  lourchaser  shall  hold  such  share  jointly  with  the  other  owner. 

§  40. — Nothing  herein  contained  shall  affect  the  right  of  the  plaintiff  to  sue  in 
the  same  manner  as  though  the  j)rovisions  of  this  act  had  not  been  enacted. 

§  41. — In  action  before  a  justice  of  the  peace,  it  shall  be  sufficient  to  allege  the 
contract  to  have  been  made  with  the  boat. 

GARNISHMENT. 

§  1. — "Whenever  a  judgment  shall  be  rendered  by  any  court  of  record,  or  any 
justice  of  the  peace  in  this  state,  and  an  execution  against  the  defendant  in  such 
judgment  shall  be  returned  by  the  proper  officer  "no  property  found,"  on  the  affi- 
davit of  the  plaintiff,  or  other  credible  person,  being  filed  with  the  clerk  of  such 
court  or  justice  of  the  peace,  that  said  defendant  has  no  property  within  the  knowl- 
edge of  such  affiant,  in  his  possession,  liable  to  execution,  and  that  siich  affiant  hath 
just  reason  to  believe  that  any  other  person  is  indebted  to  such  defendant,  or  hath 
any  effects  or  estate  of  such  defendant  in  his  possession,  custody  or  charge,  it  shall 
be  lawful  for  such  clerk  or  justice  of  the  peace  to  issue  a  summons  against  the  jjer- 
son  supposed  to  be  indebted  to,  or  supi)osed  to  have  any  of  the  effects  or  estate  of 
the  said  defendant,  commanding  him  to  appear  before  said  court  or  justice,  as  a 
garnishee;  and  said  court  or  justice  of  the  ineace  shall  examine  and  proceed  against 
such  garnishee  or  garnishees,  in  the  same  manner  as  is  required  by  law  against 
garnishees  in  original  attachments. 

§  2. — Such  garnishee  summons,  when  issued  by  the  clerk  of  a  court  of  record, 
shall  be  made  returnable,  and  be  served  as  other  summonses. 

§  3. — No  judgment  by  default  shall  be  rendered,  unless  such  process  shall  have 
been  served  ten  days  before  the  return  day;  but  if  such  process  shall  have  been 
served  within  less  than  ten  days,  it  shall  be  deemed  returnable  on  the  first  day  of 
the  next  tenn  of  the  court.  If  garnishee  process  shall  be  issued  in  term  time,  it 
shall  be  made  returnable  on  the  first  day  of  the  next  term  of  the  court. 

§  4. — If  such  process  is  issued  by  a  justice  of  the  peace,  it  shall  be  made  return- 
able within  the  same  time,  and  be  served  in  the  same  manner  as  other  siunmonses 
issued  by  justices  of  the  peace:  Provided,  that  in  all  cases,  the  person  or  persons 
for  whose  use  such  garnishee  summons  is  issued  shall  advance  through  the  consta- 
ble, or  otli£r  officer  serving  the  same,  to  the  person  or  persons  so  summoned  as  gar- 
nishee or  garnishees,  the  sum  of  one  dollar  for  each  person  so  summoned,  and,  in 
addition,  five  cents  per  mile  for  each  and  every  mile  of  necessary  travel,  to  and 
from  the  office  of  such  justice  of  the  i^eace,  and  the  constable,  or  other  officer, 
making  such  service,  shall  show  by  his  return  the  fact  of  the  payment  of  such  fee 
and  mileage,  and  such  fee  and  mileage  shall  be  taxed  as  other  costs  in  the  case: 
Provided,  that  in  all  cases  where  the  person  or  persons  so  siunmoned  shall  refuse  or 
fail  to  appear  at  the  time  and  place  specified  in  such  summons,  the  justice,  before 
whom  such  process  is  retiu-nable,   shall  render  a  judgment  against  the  person  or 

Eersons  so  summoned,  for  the  amount  of  fees  and  traveling  expenses,  which  have 
een  tendered  and  received  under  the  provisions  of  this  section,  in.  addition  to  the 
amount  found  to  be  due  from  the  person  or  persons  so  garnished.  [As  amended  by 
act  approved  May  31,  1881.     In  force  July  1,  1881.    L.  1881,  p.  97.] 

§  5. — When  any  person  is  summoned  as  a  garnishee  upon  any  process  of  attach- 
ment or  garnishee  summons  issued  out  of  a  court  of  record,  the  plaintiff  shall,  at 
or  before  the  term  at  which  the  garnishee  is  bound  to  appear,  or  within  such  fur- 
ther time  as  the  court  shall  allow,  exhibit  and  file,  all  and  singtdar,  such  allegations 
and  interrogatories,  in  -wTiting,  upon  which  he  shall  be  desirous  to  obtain  and 
compel  the  answer  of  any  and  every  garnishee,  touching  the  lands,  tenements, 
goods,  chattels,  monej^s,  choses  in  action,  credits  and  effects  of  such  defendant,  and 
the  value  thereof,  in  his  possession,  custody  or  charge,  or  from  him  due  and  oA^'ing 
to  the  said  defendant  at  the  time  of  the  service  of  the  said  vrrit,  or  at  any  time 
after,  or  which  shall  or  may  thereafter  become  due;  and  it  shall  be  the  duty  ()f 
every  garnishee  to  exhibit  and  file,  under  his  oath  or  affirmation,  within  ten  days 
after  he  shall  be  notified  of  the  filing  of  such  interrogatories,  or  if  no  notice  of  the 
filing  of  the  same  shall  have  been  served  upon  him,  then  on  or  before  the  third  day 
of  the  next  succeeding  tei-m  after  the  term  at  which  such  interrogatories  are  filed, 
full,  direct  and  true  answers  to  all  and  singular  the  allegations  and  interrogatories 
by  the  i^laintiff  so  exhibited  and  filed;  but  in  no  case  shall  the  garnishee  be  com- 
pelled to  answer  before  the  third  day  of  the  return  term  of  the  garnishee  process. 


ILLINOIS.  507 

§  6. — When  the  proceeding'  is  before  a  justice  of  the  peace,  it  shall  not  be  neces- 
sary to  exhibit  or  file  interrogatories  in  writing',  but  the  garnishee  may  be  exam- 
ined orally  touching  the  personal  estate,  goods,  chattels,  moneys,  choses  in  action, 
credits  and  effects  of  the  defendant,  and  the  amount  and  value  thereof  in  his  po.-;- 
session,  custody  or  charge,  or  from  him  due  and  owing  to  such  defendant  at  the 
time  of  the  service  of  such  attachment  or  summons,  or  at  any  time  after,  or  which 
shall  or  may  thereafter  become  due. 

§  7. — When  the  plaintiff  in  any  garnishee  proceeding  shall  allege  that  any  gar- 
nishee served  with  process,  or  appearing  before  any  court,  hath  not  truly  discovered 
the  lands,  tenements,  goods,  chattels,  moneys,  choses  in  action,  credits  and  effects, 
or  if  before  a  justice  of  the  peace  such  personal  effects  of  the  defendant  in  the 
attachment  suit  or  jud.gment,  and  the  value  thereof,  in  his  possession,  custody 
or  charge,  or  from  him  due  and  owing  to  the  defendant  at  the  time  of  the  service 
of  the  writ,  or  at  any  time  after,  or  which  shall  or  may  thereafter  become  due,  the 
court  or  justice  of  the  peace  shall  immediately  (imless  the  case  shall  for  good  cause 
be  continued)  proceed  to  try  such  cause^  as  against  such  garnishee,  without  the  form- 
ality of  x^leading.  The  trial  shall  bo  conducted  as  other  trials  at  law,  and  if  the 
finding  or  verdict  shall  be  against  the  garnishee,  judgment  shall  be  given  against 
him  in  the  same  manner  as  if  the  facts  had  been  admitted  Ijy  him,  with  all  costs  of 
Buch  trial.  If  the  finding  shall  be  in  favor  of  the  garnishee,  he  shall  recover  his 
costs  against  the  i^laintiff.  And  in  case  the  garnishee  admits  indebtedness  to  the 
judgment  debtor,  he  shall  not  be  liable  for  costs. 

§  8. — When  any  person  shall  have  been  summoned  as  a  garnishee  upon  any 
attachment  or  other  writ  issued  out  of  any  coiu-t  of  record,  or  by  any  justice  of  the 
peace,  and  shall  fail  to  appear  or  make  discovery,  as  by  this  act  required,  the  court 
or  justice  of  the  peace  may  enter  a  conditional  judgment  against  such  garnishee  for 
the  amount  of  the  plaintiff's  demand,  or  judgment  against  the  original  defendant, 
and  thereupon  a  scire /acMS  shall  issue  against  such  garnishee,  returnable,  if  the 
proceedings  be  in  a  court  of  record,  at  the  next  term  of  court,  or  if  it  be  before  a 
justice  of  the  peace,  within  the  same  time  as  other  summonses  from  justices  of  the 
peace,  commanding  such  garnishee  to  show  cause  why  such  judgment  should  not 
be  made  final.  If  such  garnishee,  being  served  with  process  or  notified  as  required 
by  law,  shall  fail  to  appear  and  make  discovery  in  the  manner  aforesaid,  the  court, 
or  justice  of  the  peace,  shall  confirm  such  judgment,  to  the  amount  of  the  judgment 
against  the  original  defendant,  and  award  execution  for  the  same  and  costs.  If 
such  garnishee  shall  appear  and  answer,  the  same  i^roceedings  may  be  had  as  in 
other  cases. 

§  9. — If  any  garnishee  shall  become  a  non-resident,  or  shall  have  gone  out  of 
this  state,  or  is  concealed  within  this  state  so  that  the  scire  facias  cannot  be  served 
upon  him,  upon  the  plaintiff  or  his  agent  filing  affidavit,  as  in  cases  of  non-resi- 
dent defendant  in  attachment,  such  garnishee  may  be  notified  in  the  same  manner 
as  such  non-resident  defendants,  and  upon  such  notice  being  given  he  may  be  pro- 
ceeded against  in  the  same  manner  as  if  he  had  been  personally  served  with  such 
scire  facias. 

§  10. — No  final  judgment  shall  be  entered  against  a  garnishee  in  any  attachment 
proceeding  until  the  plaintiff  shall  have  recovered  a  judgment  against  the  defend- 
ant in  such  attachment. 

§  11. — If  it  appears  that  any  goods,  chattels,  choses  in  action,  credits  or  effects 
in  the  hands  of  a  garnishee  are  claimed  by  any  other  person,  by  force  of  an  assign- 
ment from  the  defendant,  or  otherwise,  the  court  or  justice  of  the  peace  shall  per- 
mit such  claimant  to  appear  and  maintain  his  right.  If  he  does  not  voluntarily 
appear,  notice  for  that  purpose  shall  be  issued  and  served  on  him  in  such  manner 
as  the  court  or  justice  shall  direct. 

§  12. — If  such  claimant  appears  he  may  be  admitted  as  a  party  to  the  suit,  so 
far  as  respects  his  title  to  the  property  in  question,  and  may  allege  and  prove  any 
facts  not  stated  nor  denied  by  the  garnishee,  and  such  allegations  shall  be  tried 
and  determined  in  the  manner  hereinbefore  provided.  If  such  person  shall  fail  to 
appear  after  having  been  served  with  notice  in  the  manner  directed,  he  shall  never- 
theless be  concluded  by  the  judgment  in  regard  to  his  claim. 

§  13. — Every  garnishee  shall  be  allowed  to  retain  or  deduct  out  of  the  property, 
effects  or  credits  in  his  hands  all  demands  against  the  jnaintiff,  and  all  demands 
against  the  defendant,  of  which  he  could  have  availed  himself  if  he  had  not  been 
summoned  as  garnishee,  whether  the  same  are  at  the  time  due  or  not,  and  whether 
by  way  of  set-offs  on  a  trial,  or  by  the  set-off  of  judgments  or  executions  between 
himself  and  the  plaintiff  and  defendant  severally,  and  he  shall  be  lialile  for  the  bal- 
ance only  after  all  mutual  demands  between  himself  and  plaintifE  and  defendant  are 


608  ILLINOIS. 

adjusted,  not  mcluding  unliquidated  damages  for  wrongs  and  injuries:  Provided, 
that  tlie  verdict  or  finding,  as  well  as  the  record  of  the  judyr.aent,  shall  show  in  all 
cases,  against  which  party,  and  the  amount  thereof,  any  set-off  shall  be  allowed, 
if  any  such  shall  be  allowed. 

§  14.— The  wages  and  services  of  a  defendant  being  the  head  of  a  family,  and 
residing  with  the  same,  to  an  amount  not  exceeding  fifty  dollars  (850)  shall  be  ex- 
empt from  garnishment.  In  case  the  wages  or  services  of  such  defendant,  in  the 
hands  of  a  garnishee,  shall  exceed  fifty  dollars  ($50)  judgment  shall  be  given  only 
for  the  balance  above  that  amount. 

§  15.— No  person  shall  be  liable  as  a  garnishee  by  reason  of  having  drawn, 
accepted,  made  or  indorsed  any  negotiable  instrument,  when  the  same  is  not  due, 
in  the  hands  of  the  defendant  at  tiie  time  of  service  of  the  garnishee,  summons,  or 
the  rendition  of  the  judgment. 

§  10. — The  judgment  against  a  garnishee  shall  acquit  him  from  all  demands  by 
the  defendant  for  all  goods,  effects  and  credits  paid,  delivered  or  accounted  for  by 
the  garnishee  by  force  of  such  judgment. 

§  IZ.^If  the  person  summoned  as  garnishee  is  discharged,  the  judgment  shall 
be  no  bar  to  an  action  brought  against  him  by  the  defendant  for  the  same  demand. 

§  18.  — In  case  of  the  death  of  a  person  served  as  garnishee,  his  executor  or  ad- 
ministrator may  be  made  a  party,  and  notified,  unless  his  aj^pearance  is  entered,  as 
in  the  case  of  the  death  of  a  defendant,  and  the  cause  may  proceed  against  him 
as  personal  representative  of  the  deceased. 

§  19. — When  judgment  is  rendered  against  any  garnishee,  and  it  shall  appear 
that  the  deb't  from  him  to  the  defendant  is  not  yet  due,  execution  shall  not  issue 
against  him  until  twenty  days  after  the  same  shall  become  due,  unless  the  party 
asking  the  same,  or  his  agent,  shall  make  oath  that  he  believes  the  debt  will  be  lost 
unless  execution  issue  forthwith,  in  which  case  execution  shall  issue  as  soon  as  said 
debt  to  defendant  is  due;  but  no  sale  of  property,  under  such  execution,  shall  take 
place  until  after  the  expiration  of  twenty  days  from  date  of  judgment. 

§  20. — ^When  any  garnishee  has  any  goods,  chattels,  choses  in  action,  or  effects 
other  than  money,  belonging  to  the  defendant,  or  which  he  is  bound  to  deliver  to 
him,  he  shall  deliver  the  same,  or  so  much  thereof  as  may  be  necessary,  to  the 
officer  who  shall  hold  the  execution  in  favor  of  the  ijlaintiff,  in  the  attachment  suit 
or  judgment,  which  shall  be  sold  by  the  officer,  and  the  proceeds  applied  and 
accounted  for  in  the  same  manner  as  other  goods  and  chattels  taken  on  execution. 

§  21. — When  it  shall  appear  that  such  goods,  chattels,  choses  in  action,  or  effects 
in  the  hands  of  a  garnishee  are  mortgaged,  or  pledged,  or  in  any  way  liable  for  the 
payment  of  a  debt  to  him,  the  plaintiff  may  be  allowed,  under  an  order  of  the  court 
or  justice  of  the  peace,  for  that  purpose,  to  i^ay  or  tender  the  amount  due  to  the 
garnishee;  and  he  shall  thereupon  deliver  the  goods,  chattels,  choses  in  action  and 
effects,  in  the  manner  before  i^rovided,  to  the  officer  who  holds  the  execution. 

§  22. — If  the  goods,  chattels,  choses  in  action  or  effects  are  held  for  any  purpose, 
other  than  to  secure  the  payment  of  money,  and  if  the  contract,  condition  or  other 
thing  to  be  performed,  is  such  as  can  be  performed  by  the  plaintiff  without  damage 
to  the  other  parties,  tlie  court  or  justice  of  the  peace  may  make  an  order  for  the 
performance  thereof  by  him.  Upon  such  performance,  or  a  tender,  the  garnishee 
shall  deliver  the  goods,  chattels  and  effects  in  the  manner  before  provided,  to  the 
officer  who  holds  the  execution. 

§  23. — All  goods,  chattels,  choses  in  action  and  effects,  received  by  the  officer 
under  either  of  the  two  preceding  sections,  shall  be  sold  and  disposed  of  in  the 
same  manner  as  if  they  had  been  taken  on  an  execution  in  any  other  manner, 
except  that  from  the  proceeds  of  the  sale  the  officer  shall  repay  the  plaintiff  the 
amount  paid  by  him  to  the  garnishee  for  the  redemption  of  the  same,  with  in- 
terest thereon,  or  shall  indemnify  the  plaintiff  for  any  other  act  or  thing  by  him 
done  or  performed  pursuant  to  the  order  of  the  court  or  justice  of  the  peace  for 
the  redemption  of  the  same. 

§  24. — When  it  shall  appear  that  anj''  garnishee  has  in  his  hands,  or  under  his 
control,  any  goods,  chattels,  choses  in  action  or  effects,  belonging  to  or  which  he  is 
bound  to  deliver  to  the  defendant,  with  or  without  condition,  the  coiu-t  or  justice  of 
the  peace  may  make  any  and  all  proper  orders  in  regard  to  the  delivery  thereof  to 
the  proper  officer,  and  the  sale  or  disposition  of  the  same,  and  the  discharging  of 
any  lien  thereon,  and  may  authorize  the  garnishee  to  sell  any  such  property,  or  col- 
lect any  choses  in  action,  and  account  for  the  proceeds  thereof;  or,  if  the  proceeding 


ILLINOIS.  509 

be  in  a.  court  of  record,  the  court  may  appoint  a  receiver  to  take  possession  and  sell, 
collect,  or  otherwise  dispose  of  the  same,  and  make  all  orders  in  regard  thereto 
which  may  be  necessary  or  equitable  between  the  parties. 

§  25. — If  any  garnishee  refuses  or  neglects  to  deliver  any  goods,  chattels,  chosea 
in  action  or  effects  in  his  hands  when  thereto  lawfully  required  by  the  court  or 
justice  of  the  peace  or  officer  having  an  execution  upon  which  the  same  may  be 
received,  he  shall,  if  the  proceeding  be  in  a  court  of  record,  be  liable  to  be  attached 
and  punished  as  for  a  contemjjt,  or  the  court  maj^  enter  up  judgment  for  the 
amoimt  of  the  plaintiff's  judgment,  and  award  execution  thereon  against  the  gar- 
nishee; or,  if  the  proceeding  ba  before  a  justice  of  the  peace,  be  liable  to  the  plaint- 
iff for  the  full  amount  of  his  judgment  against  the  defendant,  and  judgment  may  be 
entered  against  him  therefor. 

§  26. — Nothing  contained  in  this  chapter  shall  prevent  the  garnishee  from  receiv- 
ing any  goods,  chattels,  choses  in  action  or  effects  in  his  hands  for  the  payment  of 
any  demand  for  which  they  are  mortgaged,  pledged,  or  otherwise  liable  at  any  time 
before  the  amount  due  to  him  is  paid  or  tendered,  if  such  sale  would  be  authorized 
as  between  him  and  the  defendant. 

§  27.^The  court  or  justice  of  the  peace  may  order  the  costs  of  the  proceedings 
in  any  garnishment  to  be  paid  by  the  plaintiff,  or  out  of  the  effects  or  credits  gar- 
nished, or  by  the  garnishee,  or  may  apportion  the  same  as  shall  appear  to  be  just 
and  equitable.  The  garnishee  shall  be  entitled  to  fees  the  same  as  witnesses  before 
the  same  courts  in  civil  cases. 

§  28. — An  appeal  may  be  taken  from  the  judgment  or  any  final  order  of  the 
court  or  justice  of  the  peace,  by  any  party  to  such  proceeding,  in  like  manner  as 
appeals  are  taken  in  other  cases. 

§  29. — Whenever  a  judgment  shall  be  rendered  by  any  justice  of  the  peace  in 
any  county  of  this  state  and  not  appealed  from,  and  an  execution  against  the  de- 
fendant in  such  judgment  shall  be  returned  by  the  proper  officer,  "no  property 
found,"  it  shall  and  may  be  lawful  for  the  plaintiff,  his  ag^nt  or  attorney,  to  file  a 
transcript  of  said  judgment  (including  the  issuing  and  retm-n  of  said  execution), 
properly  certified  to  by  the  justice  of  the  peace  before  whom  said  judgment  was 
obtained,  accompanied  with  a  certificate  from  the  county  clerk,  that  the  justice 
issuing  such  transcript  is  an  acting  justice  of  the  peace,  with  any  other  justice  of 
the  peace  of  any  other  county  in  this  state,  and  the  same  to  be  spread  upon  his 
docket — and  the  same  proceedings  in  regard  to  garnishment  had  thereon  that  might 
have  been  had  before  the  justice  who  rendered  the  original  judgment.— [Laws  of 
1879,  p.  176.] 

§  30. — But  one  satisfaction  shall  be  had;  and  if  the  justice  of  the  peace  to  whom 
said  transcript  shall  be  sent  shall  render  a  judgment  against  any  garnishee  sum- 
moned according  to  law,  and  if  said  judgment  shall  be  wholly  or  in  part  satisfied, 
then  the  justice  of  the  peace  shall  so  certify  such  fact  to  the  justice  of  the  peace 
who  rendered  the  original  judgment,  and  the  same  entered  upon  his  docket  as  to 
what  amount  has  been  paid  on  said  judgment;  and  if  wholly  paid,  then  both 
dockets  .shall  show  such  fact. — [Laws  of  1879,  p.  176.] 

§  .31. — The  same  fee  shall  be  allowed  such  justices  of  the  peace  as  are  now 
allowed  by  law  on  transcripts  on  appeals,  and  docketing  suits,  and  all  other  fees 
the  same  as  are  now  allowed  by  law  in  like  proceedings,  and  to  be  paid  in  the  same 
way  and  manner. — [Laws  of  1879,  p.  176.] 


Before  justices  of  the  peace — Sees.  42-58;  chap.  12,  sees.  30  46. 
Attachment  of  water-craft — Chap.  12,  sees.  1-46. 
Exemptions— Chap.  75,  pp.  676,  679,  756. 
Declaration  to  be  filed — Chap.  110,  p.  1094,  sec.  18. 


510  INDIANA. 


INDIANA. 

[Revised  Statutes  1881.] 


ATTACHMENT. 

§  913  (197). — ^The  plaintiff,  at  the  time  of  filing  his  complaint,  or  at  any  time 
afterward,  may  have  an  attachment  against  the  property  of  the  defendant,  in  the 
cases  and  in  the  manner  hereinafter  stated,  where  the  action  is  for  the  recovery 
of  money: 

First.  Where  the  defendant,  or  one  of  several  defend  nts,  is  a  foreign  corpora- 
tion or  a  non-resident  of  this  state. 

Second.  Where  the  defendant,  or  one  of  several  defendants,  is  secretly  leaving 
or  has  left  the  state,  with  intent  to  defraud  his  creditors. 

Third.    So  conceals  himself  that  a  summons  cannot  be  served  upon  him. 

Fourth.  Is  removing  or  about  to  remove  his  property  subject  to  execution,  or  a 
material  i^art  thereof,  out  of  this  state,  not  leaving  enough  therein  to  satisfy  the 
plaintiff's  claim. 

Fifth.  Has  sold,  conveyed,  or  otherwise  disposed  of  his  property  subject  to  ex- 
ecution, or  suffered  cr  permitted  it  to  be  sold,  with  the  fraudulent  intention  to 
cheat,  hinder,  or  delay  his  creditors. 

Sixth.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property  subject  to 
'execution,  with  such  intent. 

Provided,  that  the  i:)laintiff  shall  be  entitled  to  an  attachment  for  the  causes 
mentioned  in  the  second,  fourth,  fifth  and  sixth  specifications  of  this  section, 
whether  his  cause  of  action  be  due  or  not.     (156. ) 

§  914  (198). — Xo  attachment,  except  for  the  causes  mentioned  in  the  fourth, 
fifth  and  sixth  clauses  of  the  preceding  section,  shall  issue  against  any  debtor  while 
his  wife  and  family  remain  settled  Avithin  the  county  where  he  usually  resided  prior 
to  his  absence,  if  he  shall  not  continue  absent  from  the  state  more  than  one  year 
after  he  shall  have  absented  himself,  unless  an  attempt  be  made  to  conceal  his 
absence.     (157.) 

§  915  (199). — If  the  wife  or  family  of  the  debtor  shall  refuse  or  be  unable  to  give 
an  account  of  his  absence,  or  the  place  where  he  may  be  found,  or  shall  give  a 
false  account  of  either,  such  refusal,  inability  or  false  account  shall  be  deemed  an 
attempt  to  conceal  his  absence,  within  the  provisions  of  this  act.     (158.) 

§  91G  (200). — The  plaiatiff,  or  some  person  in  his  behalf,  shall  make  an  aflBdavit 
showing — 

First.   The  natiu-e  of  the  plaintiff's  claim. 

Second.   That  it  is  just. 

Third.    The  amount  which  he  believes  the  plaintiff  ought  to  recover. 

Fourth.  That  there  exists  in  the  action  some  one  of  the  groimds  for  an  attach- 
ment above  enumerated.     (159.) 

§  917  (201). — The  plaintiff,  or  some  one  in  his  behalf,  shall  execute  a  written 
undertaldng,  with  sufficient  surety,  to  be  approved  by  the  clerk,  payable  to  the 
defendant,  to  the  effect  that  the  ijlaintiff  wiU  duly  prosecute  his  proceeding  in  at- 
tachment, and  Viill  pay  all  damages  which  may  be  sustained  by  the  defendant,  if 
the  proceedings  of  the  plaintiff  shall  be  wrongful  and  oppressive.     (IGO.) 

§  918  (202). — Upon  the  filing  of  such  affidavit  and  written  undertaking  in  the 
office  of  the  clerk,  he  shall  issue  an  order  of  attachment,  which  shall  be  directed 
and  delivered  to  the  sheriff.  It  shall  requu-e  him  to  seize  and  take  into  his  posses- 
sion the  jjroperty  of  the  defendant  m  his  county  not  exempt  from  execution.    (101.) 

§  919  (203). — Orders  of  attachment  may  be  issued  to  the  sheriff  of  any  other 
county,  and  several  of  them  may,  at  the  option  of  the  plaintifif,  be  issued  at  the 
same  time  or  in  succession;  but  the  costs  only  of  such  as  have  been  executed  in 
whole  or  in  part  shall  be  recovered  against  the  defendant,  unless  otherwise  directed 
by  the  court.  The  plaintiff  shall  not  have  judgment  in  any  such  action  except  in 
some  one  of  the  following  cases,  viz. : 

First,  When  the  defendant  shaU  have  been  personally  served  with  procesSs. 


INDIANA.  511 

Second.   "When  property  of  the  defendant  shall  have  been  attached  in  the  county 

■where  the  action  i^  brought. 

I'hird.  When  a  garnishee  shall  have  been  summoned  in  the  county  where  the 
action  is  brouyht  who  shall  be  found  to  be  iudeljted  to  the  defendant,  or  to  have 
property  or  assets  iu  his  hands  subject  to  the  attachment.     (1(J2.) 

§  920  (204). — An  order  of  attachment  may  be  issued  and  executed  on  Sunday,  if 
the  plaintiff  will  show  in  his  afiidavit  that  the  defendant  is  about  to  abscond  on 
that  day,  to  the  injury  of  the  plaintiff.     (1G3.) 

§  921  (205).  —The  sheriff  shall  proceed,  with  the  assistance  of  a  disinterested  and 
credible  householder  of  the  county,  to  attach  the  lands  and  tenements,  goods  and 
chattels  of  the  defendant  subject  to  execution,  and  shall,  witn  the  assistance  of  the 
householder,  make  an  inventory  and  appraisement  thereof,  and  return  the  same 
with  the  order.     (1G4. ) 

§  922  (206). — An  order  of  attachment  binds  the  defendant's  property  in  the 
county  subject  to  execution,  and  becomes  a  lien  thereon  from  the  time  of  its  de- 
livery to  the  sheriff  in  the  same  manner  as  an  execution.     (1G5. ) 

§  923  (207). — The  defendant's  personal  property  shall  be  first  taken  under  an 
attachment;  if  enough  thereof  is  not  found  to  satisfy  the  plaintiff's  claim  and  costs 
of  the  action,  then  his  real  estate.  If,  after  an  order  of  attachment  is  placed  in 
the  hands  of  the  sheriff,  any  property  of  the  defendant  is  removed  from  the  county, 
the  sheriff  may  pursue  and  attach  the  same  in  any  county,  within  three  days  after 
the  removal.     (166.) 

§  924  (209). — The  defendant,  or  other  person  having  possession  of  property  at- 
tached, may  have  the  same  or  any  part  thereof  delivered  to  him,  by  executing  and 
delivering  to  the  sheriff  a  written  undertaking,  with  surety  to  be  approved  by  the 
sheriff,  payable  to  the  plaintiff,  to  the  effect  that  such  property  shall  be  iDroperly 
kept  and  taken  care  of,  and  shall  be  delivered  to  the  sheriff  on  demand,  or  so  much 
thereof  as  may  be  required  to  be  sold  on  execution  to  satisfy  anj'  judgment  which 
may  be  recovered  against  him  in  the  action,  or  that  he  will  pay  the  appraised 
value  of  the  property,  not  exceeding  the  amount  of  the  judgment  and  costs.    (168.) 

§  925  (210). — Whenever  any  person  other  than  the  defendant  shall  claim  any 
property  attached,  the  right  of  property  may  be  tried  as  in  cases  of  property  taken 
on  execution,  and  the  claimant,  having  notice  of  the  attachment,  shall  be  bound  to 
prosecute  his  claim  as  in  such  cases,  or  be  barred  of  his  right.     (169.) 

§  926  (211). — The  defendant  or  claimant  of  any  attached  property  may  be  re- 
quired by  the  court  to  attend  before  it  and  give  information,  on  oath,  respecting 
the  property.     (170. ) 

§  927  (212). — Goods  attached  in  the  hands  of  a  consignee  shall  be  subject  to  a 
lien  for  any  debt  due  him  from  the  consignor.     (171. ) 

§  928  (213).  — If  the  defendant,  or  other  person  in  his  behalf,  at  any  time  before 
judgment,  shall  execute  a  written  undertaking  to  the  plaintiff,  with  suflBcient 
surety  to  be  approved  by  the  court,  clerk,  or  sheriff,  to  the  efl'ect  that  the  defend- 
ant will  appear  to  the  action,  and  will  perform  the  judgment  of  the  court,  the 
attachment  shall  be  discharged  and  restitution  made  of  any  property  taken  under 
it  or  the  proceeds  thereof.     (172. ) 

§  929  (214). — When  personal  property  attached  is  of  a  perishable  nature  or  its 
keeping  expensive,  the  court  may  direct  the  sheriff  to  sell  it  at  public  auction,  upon 
reasonable  notice.  If  the  property  is  liable  to  immediate  damage,  the  sheriff,  in 
vacation,  may  sell  it,  by  giving  ten  days'  notice,  without  an  order  of  court;  and  the 
proceeds  of  all  sales  shall  be  deposited  with  the  clerk.     (173. ) 

§  930  (215). — The  sheriff  shall  be  allowed  by  the  court  the  necessary  expenses 
of  keeping  the  attached  proi^erty,  to  be  paid  by  the  plaintiff  and  taxed  in  the  costs. 
(174.) 

§  931  (216). — If,  at  the  time  an  order  of  attachment  issues,  or  at  any  time  be- 
fore or  afterward,  the  plaintiff,  or  other  person  in  his  behalf,  shall  file  with  the 
clerk  an  affidavit  that  he  has  good  reason  to  believe  that  any  jjerson,  naming  him, 
has  property  of  the  defendant  of  any  description  in  his  possession,  or  under  his 
control,  which  the  sheriff  cannot  attach  by  virtue  of  such  order;  or  that  such  per- 
son is  indebted  to  the  defendant,  or  has  the  control  or  agency  of  any  property, 
moneys,  credits,  or  effects;  or  that  the  defendant  has  any  shares  or  interest  in  the 
stock  of  any  association  or  corporation,  the  clerk  shall  issue  a  summons  notifying 
such  person,  corporation  or  association  to  appear  at  the  ensuing  term  of  the  court, 
and  answer  as  garnishee  in  the  action.     The  summons  shall  be  directed  to  the 


512  INDIANA. 

sheriff,  and  served  and  returned  by  him  in  the  same  manner  as  a  summons  is  served 
and  returned  in  other  cases.  When  the  summons  issues  before  an  attachment, 
the  affidavit  must  show  some  one  of  the  causes  authorizing  the  attachment.     (175. ) 

§  932  (217).— From  the  day  of  the  service  of  the  summons,  the  garnishee  shall 
be  accountable  to  the  plaintiff  in  the  action  for  the  amount  of  money,  property  or 
credits  in  his  hands,  or  due  and  owing  from  him  to  the  defendant.     (170. ) 

§  933  (218). — It  shall  be  the  duty  of  any  ofHcer  or  agent  of  an  association  or  cor- 
poration, and  of  every  other  person  summoned  as  a  garnishee,  vvhen  served,  or 
within  five  days  afterward,  to  furnish  the  sheriff  with  a  certificate  of  the  number  of 
shares  or  rights  of  the  defendant  in  the  stock  of  such  corporation  or  association;  or 
a  description  of  the  property  held  by  such  corporation,  association,  or  person,  be- 
longing to  or  for  the  benefit  of  the  defendant;  or  the  amount  of  the  debt  owing  to 
the  defendant  by  such  association,  corporation,  or  person,  whether  due  or  not; 
which  certificate  shall  be  returned  by  the  sheriff  with  the  summons.  If  such  offi- 
cer, agent  or  person  refuse  to  do  so,  he  may  be  required  by  the  court  to  attend 
before  it,  and  be  examined,  on  oath,  concerning  the  same;  and  obedience  to  the 
order  may  be  enforced  by  attachment.     (177.) 

§  934  (219). — Whenever  any  garnishee,  being  duly  summoned,  fails  to  appear 
and  make  discovery  as  required  by  law,  or  fails  to  answer  or  demur  to  the  matters 
set  forth  against  him  in  the  affidavit  or  additional  complaint  or  interrogatories,  such 
matters  may  be  taken  as  confessed,  or  judgment  entered  by  default,  as  the  case 
may  require;  or  he  may  be  examined  under  oath  touching  all  the  matters  charged 
in  the  afadavit  or  additional  complaint;  and  all  such  proceedings,  pleadings  and 
process  shall  be  had,  according  to  the  i^ractice  in  other  cases,  as  shall  be  necessary 
to  determine  the  rights  of  the  parties  and  render  a  tinal  judgment.     (178.) 

§  935  (220). — If  any  plaintiff,  or  other  person  in  his  behalf,  shall  file  with  the 
clerk  an  affidavit  that  he  fears  that  the  garnishee  will  abscond  before  judgment  can 
be  had,  with  intent  to  defraud  the  plaintiff,  and  that  he  verily  believes  that  the 
garnishee  has  moneys,  things  in  action,  goods,  chattels  or  effects  of  said  defendant 
in  his  possession,  or  is  indebted  to  said  defendant,  the  clerk  shall  issue  an  order 
of  arrest  against  the  garnishee,  and  hold  him  to  bail  therein  as  in  a  civil  action. 
(179.) 

§  936  (221). — Final  judgment  shall  not  be  rendered  against  a  garnishee  until  the 
action  agamst  the  defendant  in  attachment  is  determined;  and  if  the  jilaintiff  fails 
to  recover  judgment  either  against  the  defendant  or  the  garnishee,  the  garnishee 
shall  be  discharged  and  recover  his  costs.     (180. ) 

§  937  (222). — The  return  of  "no  property  found  "  upon  the  order  of  attachment 
shall  not  affect  the  p)roceedings  agamst  the  garnishee.     (181.) 

§  938  (223). — If  the  plaintiff  recover  jud.gment  against  the  defendant,  and  the 
garnishee  deliver  up  to  the  sheriff,  before  judgment  against  him,  aU  the  defendant's 
goods  and  chattels,  or  other  effects  in  his  possession  subject  to  execution,  or  an  in- 
ventory thereof,  and  piay  to  the  sheriff  or  into  court  all  moneys  due  from  him  or 
belonging  to  the  defendant,  the  costs  in  the  proceeding  against  the  garnishee  shall 
be  paid  by  the  defendant;  but  if  the  garnishee  shall  not  appear,  or,  if  appearing, 
shall  refuse  truly  to  confess  the  matter  alleged,  and,  on  the  trial,  the  plaintiff  shall 
recover  judgment  against  him;  or  if  he  admit  that  he  has  moneys,  credits  or  effects 
belonging  to  the  defendant  in  his  hands,  and  shall  refuse  to  pay  or  deliver  the  same 
as  above  provided,  he  shall  pay  costs.     (182. ) 

§  939  (224). — A  garnishee  in  attachment  shall  not  be  compelled  in  any  case  to 
pay  or  perform  any  contract  in  any  other  manner,  or  at  any  other  time,  than  he 
would  be  bound  to  do  for  the  defendant  in  attachment.     (183. ) 

§  940  (225). — A  garnishee  may  pay  the  money  owing  to  the  defendant  by  him  to 
the  sheriff  or  into  court,  and  shall  be  discharged  from  liability  to  the  defendant  for 
moneys  so  paid,  not  exceeding  the  plaintiff's  claim.     (184.) 

§  941  (226). — A  garnishee,  or  officer  of  a  corporation,  summoned  as  a  garnishee, 
at  any  time  after  being  served  with  the  summons  five  days,  may  be  examined,  in 
open  court,  on  oath;  and  if  it  be  discovered  on  such  examination  that,  at  the  time 
or  after  the  service  of  the  summons  upon  him,  he  or  the  corporation  was  possessed 
of  any  property  of  the  defendant,  or  was  indebted  to  him,  the  court  may  order  the 
delivery  of  such  property  and  the  payment  of  any  such  indebtedness  into  court,  or 
the  execution  of  a  written  imdertaking  by  the  garnishee,  with  sirfficient  sureties  to 
be  approved  by  the  com-t,  payable  to  the  plaintiff,  to  the  effect  that  the  indebted- 
ness shall  be  paid  or  the  property  forthcoming,  as  the  court  shall  direct.     (185.) 


INDIANA.  513 

§  942  (208). — Clerks  of  the  circuit  courts,  sheriffs,  justices  of  the  peace,  consta- 
bles, and  all  other  officers  who  may  collect  money  by  virtue  of  their  office,  and  all 
executors,  administrators,  guardians,  and  trustees,  shall  be  subject  to  garnishment 
at  the  suit  of  any  attachment  creditor  of  the  person  who  has  money  or  choses  in 
action  in  the  hands  of  such  officer,  executor,  administrator,  guardian  or  trustee  at 
the  time  of  the  service  of  such  garnishee  process,  in  the  same  manner  ami  to  the 
same  extent  as  other  persons  are  liable  to  be  garnished  in  attachment  proceedings. 

§  943  (227).— Any  creditor  of  the  defendant,  upon  filing  his  affidavit  and  -vvritten 
undertaking,  as  hereinbefore  required  of  the  attaching  creditor,  may,  at  any  time 
before  the  final  judgment  in  the  suit,  make  himself  a  party  to  the  action,  file  his 
complaint,  and  prove  his  claim  or  demand  against  the  defendant;  and  may  have 
any  jierson  summoned  as  garnishee,  or  held  to  bail,  who  has  not  before  been  sum- 
moned or  held  to  bail;  and  propound  interrogatories  to  the  garnishee,  and  enforce 
answers  thereto,  in  like  manner,  as  the  creditor  who  is  i^laintiff.     (18i3. ) 

§  944  (228). — A  dismissal  of  his  action  or  proceedings  in  attachment  by  the  first 
attaching  creditor  shall  not  operate  as  a  dismissal  of  the  action  or  proceedings  of 
any  subsequent  attaching  creditor.     (187. ) 

§  945  (229)'. — Any  defendant  against  whom  an  order  of  attachment  has  been  is- 
sued ma}',  after  appearing  to  the  action,  move  to  have  the  attachment  discharged 
and  restitution  awarded  of  any  property  taken  under  it;  but  an  appearance  to  the 
action  shall  not  operate  to  discharge  the  attachment,  unless  a  written  undertaking 
be  filed  as  required  in  section  two  hundred  and  thirteen  [§  928].  If  the  de- 
fendant apiiear,  and  judgment  be  rendered  in  fa^"or  of  the  plaintiff,  and  any  part 
thereof  remain  unsatisfied  after  exhausting  the  property  attached,  such  judgment 
shall  be  deemed  a  judgment  against  the  defendant  personally,  and  shall  have  the 
same  force  and  effect  as  other  judgments;  and  execution  shall  issue  thereon  ac- 
cordingly for  the  collection  of  such  residue.  If  the  plaintiff's  undertaking  be 
insufficient,  he  shall  have  a  reasonable  time  to  file  an  additional  one.     (188. ) 

§  94G  (230). — If  the  judgment  in  the  action  is  rendered  for  the  defendant,  the 
attachment  shall  be  discharged,  and  the  pro^aerty  attached,  or  its  i^roceeds,  re- 
turned to  him.     (189.) 

§  947  (2.31). — If  judgment  in  the  action  be  rendered  for  the  plaintiff,  or  one  or 
more  of  several  plaintiffs,  and  sufficient  proof  be  made  of  the  goods,  chattels,  rights, 
credits,  mcaeys  and  effects  in  the  possession  of  the  garnishee,  the  court  shall  also 
give  judgment  in  favor  of  the  plaintiff  or  creditors  against  the  garnishee  or  the 
property  of  the  defendant,  or  both,  as  the  case  may  require;  which  may  be  enforced 
by  execution.     (190.) 

§  948  (232). — After  judgment  for  the  plaintiff,  or  one  or  more  of  several  plaint- 
iffs, projierty  attached  and  remaining  unsold  may  be  sold  on  execution,  as  in  other 
cases.     (191.)  ' 

§  949  (233). — The  money  realized  from  the  attachment  and  the  garnishees  shall, 
under  the  direction  of  the  court,  after  paying  all  costs  and  expenses,  be  paid  to  the 
several  creditors  in  proportion  to  the  amount  of  their  several  claims  as  adjusted, . 
and  the  surjjlus,  if  any,  shall  be  paid  to  the  defendant.     (192. ) 

§  950  (234). — Every  defendant  shall  be  entitled  to  an  action  on  the  written  un- 
dertaking of  the  plaintiff  or  creditor  by  whose  proceedings  in  attachment  he  shall 
have  been  aggi-ievcd,  if  it  shall  appear  that  the  proceedings  were  -wrongful  and  op- 
pressive; and  he  shall  recover  damages  at  the  discretion  of  the  jury.      (193.) 

§  951  (235). — In  all  actions  in  the  name  of  the  state  of  Indiana,  or  of  any  per- 
son, agent  or  officer  for  the  use  of  the  state,  if  process  be  retm-ned  that  any  defend- 
ant is  not  found,  an  order  of  attachment  may  be  issued  and  proceedings  had  in 
like  manner,  as  in  other  cases,  without  filing  any  affidavit  or  written  undertaking. 
(194.) 

§  952  (236).— When  an  order  of  attachment  is  fully  executed  or  discharged,  the 
sheriff  shall  return  the  same,  with  his  proceedings  thereon,  to  the  court.     (195. ) 

§  953  (237).— Attachments  against  the  goods  and  chattels,  rights,  credits,  mon- 
eys and  effects  of  defendants  may  be  issued  in  cases  contemplated  in  the  fore- 
going provisions,  upon  any  claim  within  the  jurisdiction  of  a  jiistice  of  the  peace, 
upon  tiling  with  the  justice  an  affidavit,  as  prescribed  in  this  article,  and  the  justice 
shall  perform  the  duties  required  of  the  court  and  the  clerk  thereof,  and  the  con- 
stable shall  perform  the  duties  required  of  the  sheriff  in  the  above  provisions.  The 
constable  shall  return  the  order  of  attachment  within  ten  days  with  his  doings 
thereon;  and  in  case  where  a  summons  has  not  been  served  and  property  has  been 
attached,  the  justice  shall  give  thi-ee  weeks'  notice  of  thfi  attachment  in  some 
II  Attachment— 8. 


514  INDIANA. 

newspaper  published  in  the  county,  if  any  is  published  therein;  if  not,  then  by 
posting  up  A\Titten  notice  thereof  in  three  of  the  most  pubUc  places  in  the  town- 
ship; and  fix  the  day  of  trial  at  the  expiration  of  such  notice.     (196. ) 

§  954  (238). — If  the  defendant  do  not  appear  and  give  bond  for  the  release  of 
the  property  attached,  before  the  day  of  trial,  the  justice  shall  proceed  to  hear  and 
determine  the  cause;  and  in  case  judgment  be  given  against  the  defendant,  he  shall 
order  the  property  to  be  sold  to  satisfy  the  judgment,  according  to  the  provisions 
of  this  article.     (197.) 

§  955  (239). — Garnishees  may  be  summoned,  and  the  same  proceedings  had  be- 
fore the  justice,  as  provided  in  higher  courts.     (198.) 

§  95G  (240). — When  any  suit  is  commenced  before  a  justice  of  the  peace,  and  an 
attachment  is  also  issued  by  said  justice  in  the  same  action  against  the  projierty  of 
the  defendant,  any  person  who  shall  have  a  claim  against  said  defendant  of  a 
larger  amount  than  the  jurisdiction  given  to  justices  of  the  peace  may  file  the  same 
with  the  justice  of  the  peace  under  the  attachment;  and  if  any  such  claim  is  filed, 
the  justice  of  the  peace  shall  immediately  certify  the  cause,  with  all  the  papers  be- 
longing to  the  same,  to  the  circuit  court  of  the  county  wherein  said  suit  was  com- 
menced; and  the  clerk  of  said  court  to  which  the  cause  is  certified  shall  docket  the 
same;  and  the  said  coiirt  shall  proceed  with  such  cause  in  the  same  manner  as  if  it 
had  been  commenced  in  said  court. 

§  957  (241). — If  any  person  shall  file  a  claim  before  the  justice  of  the  peace,  as 
stated  in  the  preceding  section,  and  shall,  on  the  trial  in  the  circuit  court,  fail  to 
establish  his  claim  to  an  amount  sufficient  to  entitle  him  to  recover  costs  in  such 
court,  according  to  the  provisions  of  law  now  in  force,  then,  and  in  that  event,  he 
may  recover  judgment  for  his  claim,  if  proved,  but  shall  pay  all  costs  that  accrue 
in  consequence  of  such  transfer;  but  if  he  shall  recover  judgment  to  an  amount 
sufficient  to  entitle  him  to  recover  costs,  then,  and  in  that  event,  the  attachment 
defendant  shall  pay  all  costs  to  each  attachment  plaintiff  that  shall  recover 
judgment. 

§  958  (242). — Hereafter  no  court  in  this  state  .shall  have  or  entertain  jurisdiction 
in  any  action  of  attachment,  garnishment,  or  supplementary  proceeding,  when  the 
plaintiff  and  i^rincipal  defendant  are  both  non-residents  of  this  state,  and  the  money 
sought  to  be  reached  by  such  attachment,  garnishment  or  supplementary  j)roceed- 
ings  is  the  personal  earnings  or  wages  due  or  owing  to  the  principal  defendant  from 
any  person  or  corporation  doing  business  in  this  state. 

§  959  (243). — The  wages  of  all  persons  in  the  employ  of  any  person  or  corpora- 
tion shall  be  exempt  from  garnishment  and  proceedings  supplemental  to  execution 
in  the  hands  of  such  person  or  corporation,  so  long  as  such  employ&  remains  in 
such  emiDloyment,  not  exceeding  one  month's  wages  at  any  one  time. 

§  9G0  (244). — Any  person  or  corporation  in  debt  for  wages,  as  in  the  preceding 
section  i^rovided,  may,  at  any  time  after  being  served  with  a  garnishee  summons, 
pay  to  any  such  employee  the  amount  of  wages  exempted  by  the  preceding  sec- 
tion; and  such  payment  shall  discharge  such  garnishee-defendant  from  liability  for 
the  amount  so  paid,  as  effectually  as  if  paid  before  the  issuing  of  such  summons. 


Before  justices  of  the  peace — Page  276,  sec.  1445;  pp.  289-291,  sees.  1529-1544. 

Notice  by  publication — Page  56,  sec.  318. 

Notice  of  levy  filed  mth  clerk  of  circuit  court — Pages  59-60,  sees.  326-331. 

Costs  where  lands  attached — Page  114,  sec.  597. 

Exemptions — Page  136,  sees.  703,  740,  715. 

Real  estate  liable  to — Page  144,  sec.  752. 

Plaintiff  not  required  to  give  a  refunding  bond — Page  154,  sec.  789.  ' 

Notice  in  cases  of  doubtful  ownership — Page  291,  sees.  1545,  1546. 

Opi^ressive  garnishment,  transferring  claims — Page  406,  sees.  2162,  2163. 

For  non-j)ayment  of  license — Page  1141,  sec.  5274. 

Of  water-craft— Page  1143,  sees.  5280,  5283. 


IOWA..  515 

IOWA. 

[McClain's  Annotated  Statutes,  1880.] 


OF  ATTACHMENTS  AND  GARNISHMENT. 

§  2949. — ^The  plaintiff  in  a  civil  action  may  cause  any  property  of  the  defendant 
■which  is  not  exempt  from  execution  to  be  attached  at  the  commencement  or  during 
the  process  of  the  proceeding,  by  pursuing  the  course  hereinafter  prescribed. 

g  2950. — If  it  be  subsequent  to  the  commencement  of  the  action,  a  separate 
petition  must  be  filed,  and  in  all  cases  the  proceedings  relative  to  the  attachment 
are  to  be  deemed  independent  of  the  ordinary  proceedings  and  only  auxiliary 
thereto. 

§  2951. — The  petition  which  asks  an  attachment  must  in  all  cases  be  sworn  to. 
It  must  state: 

1.  That  the  defendant  is  a  foreign  corporation,  or  acting  as  such;  or, 

2.  That  he  is  a  non- resident  of  the  state;  or, 

3.  That  he  is  about  to  remove  his  pi'operty  out  of  the  state  without  leaving 
sufficient  remaining  for  the  payment  of  his  debts;  or, 

4.  That  he  has  disposed  of  his  property,  in  whole  or  in  part,  with  intent  to 
defraud  his  creditors;  or, 

5.  That  the  defendant  is  about  to  dispose  of  his  property  with  intent  to  defraud 
his  creditors;  or, 

6.  That  he  has  absconded,  so  that  the  ordinary  process  cannot  be  served  upon 
him;  or, 

7.  That  he  is  about  to  remove  permanently  out  of  the  county  and  has  property 
therein  not  exempt  from  execution,  and  that  he  refuses  to  pay  or  secure  the 
plaintiff;  or, 

8.  That  he  is  about  to  remove  permanently  out  of  the  state,  and  refuses  to  pay 
or  secure  the  debt  due  the  plaintiff ;  or, 

9.  That  he  is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  county 
with  intent  to  defraud  his  creditors;  or, 

10.  That  he  is  about  to  convert  his  property,  or  a  part  thereof,  into  money  for 
the  purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or, 

11.  That  he  has  property  or  rights  in  action  which  he  conceals;  or, 

12.  That  the  debt  is  due  for  property  obtained  under  false  pretenses., 

§  2952. — Where  the  petition  states,  in  addition  to  the  other  facts  required,  that 
the  plaintiff  will  lose  his  claim  unless  the  attachment  issues  and  is  served  on  Sun- 
day, it.may  be  issued  and  served  on  that  day. 

§  2953. — If  the  plaintiff's  demand  is  founded  on  contract,  the  petition  must 
state  that  something  is  due,  and,  as  nearly  as  practicable,  the  amount,  which  must 
be  more  than  five  dollars  in  order  to  authorize  an  attachment. 

§  2954. — The  amount  thus  sworn  to  is  intended  as  a  guide  to  the  sheriff,  who 
must,  as  nearly  as  the  cu'cumstances  of  the  case  will  permit,  levy  upon  property 
fifty  per  cent,  greater  in  value  than  that  amount. 

§  2955. — If  the  demand  is  not  founded  on  contract,  the  original  petition  must 
be  presented  to  some  judge  of  the  supreme,  district,  or  circuit  court,  who  shall 
make  an  allowance  thereon  of  the  amount  in  value  of  the  property  that  may  be 
attaclied.  The  provisions  of  this  section  apply  only  to  cases  in  the  district  and 
circuit  court. 

FOR  DEBTS  NOT  DDE. 

§  2956.  — The  property  of  a  debtor  may  be  attached  previous  to  the  time  when 
the  debt  becomes  due,  when  nothing  but  time  is  wanting  to  fix  an  absolute  indebt- 
edness, and  when  the  petition,  in  addition  to  that  fact,  states: 

1.  That  the  defendant  is  about  to  dispose  of  his  property  with  intent  to  defraud 
his  creditors;  or, 

2.  That  he  is  about  to  remove  from  the  state  and  refuses  to  make  any  arrange- 
ments for  securing  the  payment  of  the  debt  when,  it  falls  due,  and  which  con- 


516  lo-wA. 

templated  removal  was  not  known  to  the  plaintiff  at  the  time  the  debt  was 
conti'acted;  or, 

3.  That  the  defendant  has  disposed  of  his  property,  in  whole  or  in  part,  with 
intent  to  defraud  his  creditors;  or, 

4.  That  the  debt  was  incurred  for  property  obtained  under  false  pretenses. 

§  2957. — ^If  the  debt  or  demand  on  which  the  attachment  suit  is  brought  is  not 
dvxe  at  the  time  of  the  service  of  the  attachment,  the  defendant  is  not  required  to 
file  any  jjleadings  until  the  maturity  of  such  debt  or  demand;  but  he  may,  in  his 
discretion,  do  so  and  go  to  trial  as  early  as  the  cause  is  reached. 

§  29.38. — And  no  final  judgment  shall  be  rendered  upon  such  attachment  unless 
the  party  consents  as  in  the  last  section,  until  the  debt  or  demand  upon  which  it 
is  based  becomes  due.  But  property  of  perishable  nature  may  be  sold  as  in  other 
attachment  cases. 

BOND. 

§  29.59. — In  all  cases,  before  an  attachment  can  be  issued,  the  plaintiff  must 
file  with  the  clerk  a  bond  for  the  use  of  the  defendant,  vrith.  sureties  to  be  approved 
by  such  clerk,  in  a  penalty  at  least  double  the  value  of  the  property  sought  to  be 
attached,  and  in  no  case  less  than  two  hundred  and  fifty  dollars  in  a  cotu-t  of  record, 
nor  less  than  fifty  dollars  if  in  a  justice's  court,  conditioned  that  the  plaintiff  will 
pay  all  damages  which  the  defendant  may  sustain  by  reason  of  the  wrongful  suing 
out  of  the  attachment. 

§  29G0. — The  defendant  may,  at  any  time  before  judgment,  move  the  court  or 
judge  for  additional  security  on  the  part  of  the  plaintiff,  and  if,  on  such  motion, 
the  court  or  judge  is  satisfied  that  the  siu-ety  in  the  plaintiff's  bond  has  removed 
from  this  state,  or  is  not  sufficient,  the  attachment  may  bo  vacated  and  restitution 
directed  of  any  property  taken  under  it,  unless,  in  a  reasonable  time  to  be  fixed  by 
the  court  or  judge,  security  is  given  by  the  plaintiff. 

§  2901. — In  an  action  on  such  bond,  the  plaintiff  therein  may  recover  if  he  shows 
that  the  attachment  was  wrongfully  sued  out,  and  that  there  was  no  reasonable 
caiise  to  believe  the  ground  tipon  which  the  same  was  issued  to  be  true,  the  actual 
daninges  sustained  and  a  reasonable  attorney's  fees  to  be  fixed  by  the  court;  and  if 
it  be  shoviTi  such  attachment  was  sued  out  maliciously,  he  may  recover  exemplary 
damages,  nor  need  he  wait  until  the  principal  suit  is  determined  before  suing  on 
the  bond. 

MODE   OF  ATTACHIIEXT. 

§  2962. — The  clerk  shall  issue  an  attachment,  directing  the  sheriff  of  the  county 
therein  named  to  attach  the  property  of  the  defendant  to  the  requisite  amoimt 
therein  stated. 

§  2963. — Attachments  may  be  issued  from  covuis  of  record  to  different  counties, 
and  several  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same  time,  or  in 
succession  and  subsequently,  tmtil  sufficient  property  has  been  attached;  but  only 
those  executed  shall  be  taxed  in  the  costs,  unless  otherwise  ordered  by  the  com-t; 
and  if  more  property  is  attached  in  the  aggregate  than  the  plaintiff  is  entitled  to 
have  held,  the  surplus  must  be  abandoned  and  the  plaintiff^  pay  all  costs  incurred 
in  relation  to  such  sm-plus. 

§  2964. — The  sheriff  shall  in  all  cases  attach  the  amount  of  property  directed  if 
sufiicient,  not  exempt  from  execution,  found  in  his  county,  giving  that  in  which 
the  defendant  has  a  legal  and  imquestionable  title  a  preference  over  that  in  which 
his  title  is  doubtful  or  only  equitable. 

§  2965. — Where  there  are  several  attachments  against  the  same  defendant,  they 
shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff. 

§2966. — If,  after  an  attachment  has  been  placed  in  the  hands  of  the  sheriff, 
any  property  of  the  defendant  is  moved  from  the  county,  the  sheriff  may  pursue 
and  attach  the  same  in  an  adjoining  county  within  twenty-fom-  hours  after  removal. 

§  2967. — Stock  or  interest  owned  by  the  defendant  in  any  company,  and  also 
debts  due  him,  or  propertj-  of  his  held  by  third  persons,  may  be  attached,  and  the 
mode  of  attachment  must  be  as  follows: 

1.  By  giving  the  defendant  in  the  action,  if  found  within  the  comity,  and  also 
the  person  occupying  or  in  possesion  of  the  property,  if  it  be  in  the  hands  of  a  third 
person,  notice  of  attachment. 

2.  If  the  property  is  capable  of  manual  delivery,  the  sheriff  must  take  the  same 
into  his  custody  if  it  can  be  foimd. 

3.  Stock  iu  a  company  is  attached  by  notifying  the  president  or  other  head  of 


IOWA.  517 

the  company,  or  the  secretary,  cashier,  or  other  managing  agent  thereof,  of  the 
fact  that  the  stock  has  been  so  attached. 

4.  Debts  due  the  defendant,  or  property  of  his  held  by  third  persons  and  which 
cannot  be  found,  or  the  title  to  which  is  doubtful,  are  attached  by  garnishment 
thereof. 

§  29G8.— Whenever  it  appears  by  the  affidavit  of  the  plaintiff  or  by  the  return 
of  the  attachment,  that  no  property  is  kno%\Ti  to  the  plaintiff  or  the  officer  on 
which  the  attachment  can  be  executed,  or  not  enough  to  satisfy  the  plaintiff's 
claim,  and,  it  being  sho^\^l  to  the  judge  of  any  court  by  affidavit,  that  the  defend- 
ant has  property  within  the  state  not  exempt,  the  defendant  may  be  required^  by 
such  judge  to  attend  before  him,  or  before  the  court  in  which  the  action  is  pending, 
and  give  information  on  oath  respecting  his  property. 

§2969. — Property  attached  otherwise  than  by  garnishment,  is  bound  thereby 
from  the  time  of  the  service  of  the  attachment  only. 

§  2970. — The  coiirt  before  whom  the  action  is  pending,  or  the  judge  thereof  in 
vacation,  may,  at  any  time,  appoint  a  receiver  to  take  possession  of  property  at- 
tached under  the  provisions  of  this  chapter,  and  to  collect,  manage,  and  control 
the  same,  and  pay  over  the  proceeds  according  to  the  nature  of  the  property  and 
the  exigency  of  the  case. 

§  2971. — All  money  attached  by  the  sheriff,  or  coming  into  his  hands  by  virtue 
of  the  attachment,  shall  forthwith  be  paid  over  to  the  clerk  to  be  by  him  retained 
tUl  the  further  action  of  the  court. 

§  2972. — The  sheriff  shall  make  such  disposition  of  other  attached  property  as 
may  be  directed  by  the  court  or  judge,  and  where  there  is  no  direction  upon  the 
subject  he  shall  safely  keep  the  property  subject  to  the  order  of  the  court. 

PARTNERSHIP   PROPERTY. 

§  2973. — In  executing  an  attachment  against  a  person  who  owns  property  jointly 
or  in  common  with  another,  or  who  is  a  member  of  a  partnership,  the  officer  may 
take  possession  of  such  property  so  owned  jointly,  in  common,  or  in  partnership, 
sufficiently  to  enable  him  to  inventory  and  appraise  the  same,  and  for  that  purpose 
shall  call  to  his  assistance  three  disinterested  persons;  which  inventory  and  ap- 
praisement  shall  be  returned  l^y  the  officer  with  the  attachment,  and  such  return 
shall  state  who  claims  to  o\vn  such  property. 

§  2974.^ — The  plaintiff  shall,  from  the  time  such  property  is  taken  possession  of 
by  the  officer,  have  a  lien  on  the  interest  of  the  defendant  therein,  and  may,  either 
before  or  after  he  obtains  judgment  in  the  action  in  which  the  attachment  issued, 
commence  an  action  by  equitable  proceedings  to  ascertain  the  nature  and  extent  of 
such  interest  and  to  enforce  the  lien;  and,  if  deemed  necessary  or  proper,  the  court 
or  judge  may  appoint  a  receiver  under  the  circumstances  and  conditions  provided 
in  chapter  twelve,  of  title  seventeen. 

GARNISHMEXT. 

§  2976. — A  sheriff  or  constable  may  be  garnished  for  money  of  the  defendant  in 
his  hands.  So  may  a  judgment  debtor  of  the  defendant  when  the  jud.gment  has 
not  been  previously  assigned  on  the  record,  or  by  writing  filed  in  the  office  of  the 
clerk  and  by  him  minuted  as  an  assignment  on  the  margin  of  the  judgment  docket, 
and  also  an  executor  for  money  due  from  the  decedent  to  the  defendant  may  be 
garnished,  but  a  municipal  or  political  corporation  shall  not  be  garnished. 

§2977. — Where  the  property  to  be  attached  is  a  fund  in  com-t,  the  execution  of 
a  writ  of  attachment  shall  be  by  leaving  with  the  clerk  of  the  court  a  copy  thereof, 
with  notice,  specifying  the  fund. 

§  2978. — If  the  garnishee  die  after  he  has  been  summoned  by  garnishment  and 
pending  the  litigation,  the  proceedings  may  be  revived  by  or  against  his  heirs  or 
legal  representatives. 

§  2979. — Unless  exempted  as  provided  in  the  next  section,  the  notice  miist  also 
require  the  garnishee  'to  appear  on  the  first  day  of  the  next  term  of  the  court 
wherein  the  main  cause  is  pending,  or  on  the  day  fixed  for  trial  if  in  a  justice's 
court,  and  answer  such  interrogatories  as  may  be  then  propounded  to  him,  or  that 
he  will  be  liable  to  pay  the  entire  judgment  which  the  plaintiff  eventually  obtains 
against  the  defendant. 

§  2980.— When  the  plaintiff,  in  writing,  directs  the  sheriff  to  take  the  answer 
of  the  garnishee,  the  sheriff  shall  put  to  the  garnishee  the  following  questions: 


618  IOWA. 

1.  Are  yoti  in  any  manner  indebted  to  the  defendant  in  this  suit,  or  do  you-owe 
him  money  or  jn-operty  which  is  not  yet  due?    If  so,  state  the  particulars. 

2.  Have  you  in  your  possession  or  under  your  control,  any  property,  rights,  or 
credits  of  the  said  defendants?  If  so,  what  is  the  value  of  the  same,  and  state  aU 
particulars. 

3.  Do  you  know  of  any  debts  owing  to  the  said  defendant,  whether  due  or  not 
due,  or  anj'  propertj*,  rights,  or  credits  belonging  to  him  and  now  in  the  possession 
or  under  the  control  of  others?  If  so,  state  the  particulars:  and  append  the 
examination  to  his  return. 

MODE. 

§  2981. — If  the  garnishee  refuses  to  answer  fully  and  unequivocally  all  the  fore- 
going interrogatories,  he  shall  be  notified  to  appear  and  answer  on  the  fii-st  day  of 
the  next  term  of  court,  or  on  the  day  fixed  for  trial  as  above  provided,  and  so  he 
may  be  required  in  any  event,  if  the  plaintiff  so  notify  him. 

§  2982. — The  qiiestions  propounded  to  the  garnishee  in  court,  may  be  such  as 
are  above  prescribed  to  be  asked  by  the  sheriff,  and  such  others  as  the  court  may 
think  proper  and  right. 

§  2983.— "WTiere  the  garnishee  is  required  to  appear  at  court,  unless  he  has 
refused  to  answer  as  contemplated  above,  he  is  entitled  to  the  pay  and  mUeage  of 
a  witness,  and  may,  in  like  manner,  require  payment  beforehand  in  order  to  be 
made  liable  for  non-attendance. 

§  2984. — If,  when  duly  summoned,  and  his  fees  tendered  when  demanded,  he 
fail  to  apjDear  and  answer  the  interrogatories  propounded  to  him  without  sufficient 
excuse  for  his  delinquency,  he  shall  be  presumed  to  be  indebted  to  the  defendant 
to  the  full  amount  of  the  plaintiff's  demand,  and  shall  be  dealt  with  accordingly. 

§  2985.— But,  for  a  mere  failure  to  appear,  he  is  not  liable  to  pay  the  amount  of 
the  plaintiff's  judgment,  until  he  has  had  an  opportunity  to  show  cause  against  the 
issuing  of  an  execution. 

§  2986. — A  garnishee  may,  at  any  time  after  answer,  exonerate  himself  from 
further  responsibility,  by  paying  over  to  the  sheriff  the  amount  owing  by  him  to 
the  defendant,  and  placing  at  the  sheriff's  disposal  the  property  of  the  defendant, 
or  so  much  of  said  debts  and  property  as  is  equal  to  the  value  of  the  property  to 
be  attached,  all  of  which  may  afterwards  be  treated  as  though  attached  in  the 
usual  manner. 

§  2987. — When  the  garnishee  has  answered  the  interrogatories  propounded  to 
him,  the  plaintiff  may  controvert  the  same  by  pleading  by  him  filed,  and  issue  may 
be  joined  and  the  same  tried  in  the  iisual  manner.  The  answer  of  the  garnishee 
Bhall  be  competent  testimony  on  such  trial. 


§  2988. — If,  in  any  of  the  above  methods,  it  is  made  to  appear  that  the  garnishee 
was  indebted  to  the  defendant,  or  had  any  of  the  defendant's  property  in  his  hands, 
either  at  the  time  of  being  served  with  the  garnishee  notice  aforesaid  or  at  any 
time  subsequent  thereto,  he  is  liable  to  the  plaintiff  in  case  judgment  is  finally 
recovered  by  him,  to  the  fuU  amount  of  that  judgment,  or  to  the  amount  of  such 
indebtedness  and  of  the  property  so  held  bj'  him;  and  a  conditional  judgment  shall 
be  entei-ed  up  against  him  accordingly,  imless  he  prefers  paying  or  delivering  the 
same  to  the  sheriff  as  above  provided. 

§  2989. — If  the  debt  of  the  garnishee  to  the  defendant  is  not  due,  execution 
shall  be  suspended  until  its  maturity. 

§  2990. — The  garnishee  shall  not  be  made  liable  on  a  debt  due  by  negotiable 
paper,  unless  such  paper  is  delivered,  or  the  gai-nishee  completely  exonerated  or 
indemnified  from  all  liability  thereon  after  he  may  have  satisfied  the  judgment. 

§  2991. — The  judgment  in  the  garnishment  suit  condemning  the  property  or  debt 
in  the  hands  of  the  garnishee  to  the  satisfaction  of  the  plaintiff's  demand,  is  con- 
clusive between  the  garnishee  and  defendant. 

§  2992. — The  docketing  of  the  original  case  shall  contain  a  statement  of  aU  the 
garnishments  therein,  and  when  judgment  is  rendered  against  a  garnishee,  the 
same  shall  distinctly  refer  to  the  original  judgment. 

§  2993. — An  appeal  lies  in  all  garnishment  cases  at  the  instance  of  the  plaintiff, 
the  defendant,  the  garnishee,  or  an  intervenor  claiming  the  property  or  money. 


IOWA.  519 

EELEASE  OP  PROPEETT. 

§  2994. — If  the  defendant,  at  any  time  before  judgment,  causes  a  bond  to  be 
executed  to  the  plaintiff  with  sufficient  sureties  to  be  approved  by  the  officer  having 
the  attachment^  or,  after  the  return  thereof  by  the  clerk,  to  the  effect  that  he  will 
perform  the  juclgment  of  the  court,  the  attachment  shall  be  discharged  and  resti- 
tution made  of  property  taken  or  proceeds  thereof.  The  execution  of  such  bond 
shall  be  deemed  an  appearance  of  such  defendant  to  the  action. 

§  2995. — Such  bond  shall  be  part  of  the  record,  and,  if  judgment  go  against  the 
defendant,  the  same  shall  be  entered  against  him  and  sureties. 

§  2996. — The  defendant,  or  any  person  in  whose  possession  any  attached  prop- 
erty is  found,  or  any  i^erson  making  affidavit  that  he  has  an  interest  in  it,  may,  at 
any  time  before  judgment,  discharge  the  property  attached,  or  any  part  thereof, 
by  giving  bond  with  security,  to  be  approved  by  the  sheriff,  in  a  penalty  at  least 
double  the  value  of  the  property  sought  to  be  released,  but  if  that  sum  would  ex- 
ceed three  times  the  claim,  then  in  such  sum  as  equals  three  times  the  claim, 
conditioned  that  such  propeii;y,  or  its  estimated  value,  shall  be  delivered  to  the 
sheriff  to  satisfy  any  judgment  which  may  be  obtained  against  the  defendant  in 
that  suit  within  twenty  days  after  the  rendition  thereof.  This  bond  shall  be  filed 
with  the  clerk  of  the  coiu-t. 

§2997. — To  determine  the  value  of  property  in  cases  where  a  bond  is  to  be 
given,  unless  the  parties  agree  otherwise,  the  sheriff  shall  summon  two  disinter- 
ested persons  having  the  qualification  of  jurors,  who,  after  having  been  sworn  by 
him  to  make  the  ajjpraisement  faithfully  and  impartially,  shall  proceed  to  the 
discharge  of  their  duty.  If  such  persons  disagree  as  to  the  value  of  the  property, 
the  sheriff  shall  decide  between  them. 

§  2998. — In  an  action  brought  upon  the  bond  above  contemplated,  it  shall  be  a 
sufficient  defense  that  the  property  for  the  delivery  of  which  the  bond  was  given, 
did  not,  at  the  time  of  the  levy,  belong  to  the  defendant  against  whom  the  attach- 
ment was  issued,  or  was  exempt  from  seiziu-e  under  such  attachment. 

SALE  OF  PERISHABLE  PKOPERTT. 

§  2999. — When  the  sheriff  thinks  the  property  attached  in  danger  of  serious 
and  immediate  waste  and  decay,  or  when  the  keeping  of  the  same  will  necessarily 
be  attended  with  such  expense  as  greatly  to  dei^reciate  the  amoimt  of  proceeds  to 
be  realized  therefrom,  or  when  the  plaintiff  makes  affidavit  to  that  effect,  the 
sheriff  maj^  summon  tkree  persons  having  the  qualification  of  jiu'ors  to  examine 
the  same.  The  sheriff  shall  give  the  defendant,  if  within  the  count.y,  three  days' 
notice  of  such  hearing,  and  he  may  appear  before  such  jury  and  have  a  personal 
hearing.  If  they  are  of  the  opinion  that  the  property  requires  soon  to  be  disposed 
of,  they  shall  specify  in  writing  a  day  beyond  which  they  do  not  deem  it  prudent 
that  it  should  be  kept  in  the  hands  of  the  sheriff.  If  such  day  occurs  before  the 
trial  day,  he  shall  thereui)on  give  the  same  notice  as  for  sale  of  goods  in  execution, 
and  for  the  same  length  of  time,  unless  the  condition  of  the  property  renders  a 
more  immediate  sale  necessary.  The  sale  shall  be  made  accordingly.  If  the  de- 
fendant gives  his  written  consent,  such  sale  may  be  made  without  such  finding. 

SPECIFIC   ATTACHMEXTS. 

§  3000. — In  an  action  to  enforce  a  mortgage  of,  or  lien  upon  personal  property, 
or  for  the  recovery,  sale,  or  partition  of  such  property,  or  by  a  plaintiff  having  a 
future  estate  or  interest  therein,  for  the  security  of  his  rights,  where  it  satisfacto- 
rily appears  by  the  petition,  verified  on  oath  or  by  affidavits,  or  the  jn-oofs  in  the 
cause,  that  the  plaintiff  has  a  just  claim,  and  that  the  property  has  been  oris  about 
to  be  sold,  concealed,  or  removed  from  the  state,  or  where  plaintiff  states  on  oath 
that  he  has  reasonable  cause  to  believe,  and  does  believe,  unless  prevented  by  the 
court,  the  property  will  be  sold,  concealed,  or  removed  from  the  state,  an  attach- 
ment may  be  gi-anted  against  the  property. 

§  3001.— In  an  action  by  a  vendor  of  property  fraudulently  purchased,  to  vacate 
the  contract  and  have  a  restoration  of  the  property,  or  compensation  therefor, 
■where  the  petition  shows  such  fraudulent  purchase  of  property  and  the  amount 
of  the  plaintiff's  claim,  and  is  verified  by  his  oath,  an  attachment  against  the 
property  may  be  granted. 

§  3002.— The  attachment  in  the  cases  mentioned  in  the  last  two  sections  maybe 
granted  by  the  court  in  which  the  action  is  brought,  or  by  the  judge  of  any  court, 
upon  such  terms  and  conditions  as  to  security  on  the  part  of  the  plaintiff  for  the 
damages  which  may  be  occasioned  by  them,  and  with  such  directions  as  to  the 


520  IOWA. 

dispcsition  to  be  made  of  the  property  attached,  as  may  be  just  and  proper  irnder 
the  circumstances  of  each  case. 

§  SC03. — The  attachment  shall  describe  the  specific  property  against  v\-hich  it  is 
issued,  and  shall  have  indorsed  upon  it  the  direction  of  the  coiu^;  cr  jud.':;e  as  to  the 
disposition  to  be  made  of  the  attached  property.  It  shall  be  directed,  executed, 
and  returned  as  other  attachments. 

§  2004. — The  court  may,  in  any  of  the  cases  mentioned  under  this  head  cf  spe- 
cific attachments,  direct  the  terms  and  conditions  of  the  bond  to  be  executed  by 
the  defcnt'ant,  with  security,  in  order  to  obtain  a  discharge  of  the  attachment  or 
to  retain  the  attached  property. 

INDEBTEDNESS   DUE   THE   STATE. 

§  3005. — In  all  cases  in  which  any  person  is  indebted  to  the  state  of  Iowa,  or  to 
any  ofiicer  or  .igent  of  the  state  for  the  use  or  benefit  of  the  state,  the  proper  dis- 
trict attorney,  or  the  attorney-rencral,  shall  demand  payment  or  security  therefor, 
whenever,  ia  the  opinion  of  said  district  attorney  or  attorney-general,  the  debt  is 
not  sufiiciently  secured. 

§  SCCG.— In  all  suits  for  money  due  to  the  state  of  Iowa,  or  due  to  any  state 
agent  or  cfSccr  for  the  use  of  the  state,  it  shall  be  lawful  for  an  attachment  to  issue 
against  the  property  or  debts  of  the  defendant  not  exemiit  from  execution,  upon 
the  fiKng  of  an  affidavit  by  the  district  attorney  of  the  proper  district,  or  of  the 
attorney-general,  that  he  verily  believes  that  a  specific  amoimt  thereta  str.ted  is 
justly  cue,  and  the  defendant  therein  has  refused  to  pay  or  secure  the  same,  and 
that  "unless  an  attachment  is  issued  against  the  propert j'  of  the  defendant  there  is 
danger  that  the  amount  due  will  be  lost  to  the  state. 

§  3007. — The  attachment  so  issued  shall  be  le\^ed  as  in  other  cases  of  attach- 
ment, and  no  bond  shall  be  required  of  the  plaintiff  in  such  cases,  and  the  shcriil 
shall  not  be  authorized  to  require  any  indemnifying  bond  before  levying  the  same. 

§  3008. — Any  property  taken  on  attachment  under  the  provisions  of  the  two 
preceding  sections,  shall  be  subject  to  be  released  upon  the  execution  of  a  delivery 
bond,  with  sufiicient  secm-ity  as  provided  by  law  iu  other  cases. 

§  3009. — In  case  any  sheriff  shall  be  held  liable  to  pay  any  d.images  by  reason 
of  the  ■^Tongful  execution  of  any  ■UTit  cf  attachment  issued  under  the  three  jjre- 
ceding  sections,  and  if  a  judgment  be  rendered  therefor  by  any  court  cf  competent 
jurisdiction,  the  amount  of  such  judgment  v.-hen  paid  by  such  sheriff  shall  liecome 
a  claim  against  the  state  of  Iowa  in  favor  of  such  sheriff,  and  a  warrant  therefor 
shall  be  c.rawn  by  the  auditor  upon  [)roper  proof. 

§  3010. — The  sheriff  shall  return  upon  every  attachment  what  he  has  done 
under  it.  The  return  must  show  the  property  attached,  the  time  it  was  attached, 
and  the  disposition  made  of  it,  by  a  full  and  particular  inventory;  also  the  ap- 
praisement above  contemplated,  when  such  has  been  made.  "When  garnishees  are 
summoned,  their  names,  and  the  time  each  was  summoned,  must  be  stated.  And 
where  real  property  is  attached,  the  sheriil  shall  describe  it  with  certainty  to  iden- 
tify it,  and,  where  he  can  do  so,  by  a  reference  to  the  book  and  page  Vvhere  the 
deed  under  which  the  defendant  holds  is  recorded.  He  shall  return  with  the  writ 
all  bonds  taken  under  it.  Such  I'etmn  muit  be  made  immediately  after  he  shall 
have  attached  sufiicient  property,  or  all  that  he  can  fiad;  or,  at  latest,  on  the  first 
day  of  the  first  term  on  which  the  defendant  is  notified  to  appear. 

§  3011. — If  judgment  is  rendered  for  the  plaintiff  in  any  case  in  which  an  attach- 
ment has  been  issued,  the  court  shall  apply  in  satisfaction  thereof,  the  money 
arising  from  the  sales  of  perishable  property,  and  if  the  same  is  not  sufficient  to 
satisfy  the  plaintiff's  claim,  the  court  shall  order  a  sale  by  the  sheriff  of  any  other 
attached  jiroperty  which  may  be  under  his  control. 

§  3012.  — The  court  may,  from  time  to  time,  make  and  enforce  proper  orders 
respecting  the  property,  sales,  and  the  apjjlication  of  the  moneys  collected. 

§3013. — The  sheriff  shall  be  allowed  by  the  court  the  necessary  expenses  of 
keeping  the  attached  property,  to  be  paid  by  the  plaintiff  and  taxed  in  the  costs. 

§  3014. — An  J'  surplus  of  the  attached  property  and  its  proceeds  shall  be  retimied 
to  the  defendant. 

§3015. — If  judgment  is  rendered  in  the  action  for  the  defendant,  the  attach- 
ment shall  be  dischai-ged,  and  the  property  attached,  or  its  i^roceeds,  shall  be 
returned  to  him. 


IOWA,  521 

§  3016. — Any  person  other  than  the  defendant  may,  before  the  sale  of  any 
attached  property,  or  before  the  pajonent  to  the  plaintilf  of  the  proceeds  thereof 
or  any  attached  debt,  present  his  petition,  verified  by  oath,  to  the  court,  disputing 
the  validity  of  the  attachment,  or  stating  a  claim  to  the  property  or  money,  or  to 
an  interest  in,  or  lien  on  it  under  any  other  attachment  or  otherwise,  and  setting 
forth  the  facts  upon  whicli  such  claim  is  founded;  and  the  petitioner's  claim  shall 
be  in  a  summary  manner  investigated.  The  court  may  hear  the  pi'oof  or  order  a 
reference,  or  may  impannel  a  jury  to  inquire  into  the  facts.  If  it  is  found  that 
the  petitioner  has  title  to,  a  lien  on,  or  any  interest  in  such  property,  the  coixrt 
shall  make  such  order  as  may  be  necessary  to  protect  his  rights.  The  costs  of  such 
proceedings  shall  be  paid  by  either  party  at  the  discretion  of  the  court. 

§  3017. — The  fact  stated  as  a  cause  of  attachment,  shall  not  be  contested  in  the 
action  by  a  mere  defense.  The  defendant's  remedy  shall  be  on  the  bond,  but  he 
may  in  his  discretion  sue  thereon  by  way  of  counter-claim,  and  in  such  case  shall 
recover  damages  as  in  an  original  action  on  such  bond. 

§  3018. — A  motion  may  be  made  to  discharge  the  attachment,  or  any  part 
thereof,  at  any  time  before  trial,  for  insufficiency  of  statement  of  cause  thereof, 
or  for  other  cause  making  it  apparent  of  record  that  the  attachment  should  not 
have  issued,  or  should  not  have  been  levied  on  all  or  on  some  part  of  the  property 
held. 

§  3019.— When  an  attachment  has  been  discharged,  if  the  plaintiff  then  announce 
his  purpose  to  appeal  from  such  order  of  discharge,  he  shall  have  two  daj's  in  which 
to  perfect  his  appeal,  and  during  that  time  such  discharge  shall  not  operate  a  return 
of  the  property  nor  divest  any  lien,  if  such  appeal  be  so  perfected  at  the  end  thereof. 

§  3020. — But,  if  judgment  in  the  action  be  also  given  against  the  plaintiff,  he 
must  also,  within  the  same  time,  take  his  appeal  thereon,  or  such  discharge  shaU. 
be  final. 

§  3021. — This  chapter  shall  be  liberally  construed;  and  the  plaintiff,  at  any  time 
when  objection  is  made  thereto,  shall  be  permitted  to  amend  any  defect  in  the 
petition,  afiidavit,  bond,  writ,  or  other  i^roceeding;  and  no  attachment  shall  be 
quashed,  dismissed,  or  the  property  attached  released,  if  the  defect  in  any  of  the 
proceedings  has,  or  can  be  amended  so  as  to  show  that  a  legal  cause  for  the  attach- 
ment existed  at  the  time  it  was  issued;  and  the  com-t  shall  give  the  i^laintiff  a 
reasonable  time  to  perfect  such  defective  proceedings;  the  causes  for  attachment 
shall  not  be  stated  in  the  alternative. 

§  3022.— No  levy  of  attachment  on  real  estate  shall  be  notice  to  a  subsequent 
vendee  or  incumbrancer  in  good  faith,  unless  the  sheriff  making  such  levy  shall 
have  entered  in  a  book  which  shall  be  kept  in  the  clerk's  office  of  each  county  by 
the  clerk  thereof,  and  called  "incumbrance  book,"  a  statement  that  the  land, 
describing  it,  has  been  attached,  and  stating  the  cause  in  which  it  was  so  attached, 
and  when  it  was  done,  and  sigTied  by  such  sheriiT;  and  such  book  shall  be  ox^en,  as 
other  books  kept  by  such  clerk,  to  public  inspection. 

§  3023. — The  word  "  sheriff,"  as  used  in  this  chapter,  is  meant  to  apply  to  con- 
stables when  the  proceedings  are  in  a  justice's  court,  or  the  like  officer  of  any  other 
court. 

§  3024. — "When  the  proceedings  are  in  a  justice's  court,  the  justice  is  to  be 
regarded  as  the  clerk  of  the  court  for  all  pm-poses  herein  contemplated. 


Before  justices  of  the  peace — Sees.  3511,  36Q5-361(X 
In  bastardy  cases — Sec.  4718. 
Collection  of  taxes  enforced  by — Sec.  405. 
For  rent— Sec.  2018. 
In  divorce  cases — Sec.  2227. 
Married  woman's  property— Sec.  2562. 
Property  taken  by  landlord — Sec.  2575. 
Mechanics'  liens — Page  COO,  sec.  9. 

Exemptions— Sees.  1988,  2371,  2526,  3048,  3072-3078;  Stats.  1882,  p.  62;  Stata, 
1884,  p.  30. 

Appeal  from  order  granting  attachment — Sec  3164. 


622  KANSAS. 


KANSAS. 

JTDassler's  Digest,  1885.] 


ATTACHMENT. 

(3999)  §  190. — The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at 
or  after  the  commencement  thereof,  have  an  attachment  against  the  property  of 
the  defendant,  and  upon  the  grounds  herein  stated: 

First.  WTien  the  defendant,  or  one  of  several  defendants,  is  a  foreign  corpora- 
tion, or  a  non-resident  of  this  state  (but  no  order  of  attachment  shall  be  issued  on 
the  ground  or  grounds  in  this  elause  stated,  for  any  claim  other  than  a  debt  or 
demand  arising  upon  contract,  judgment  or  decree,  Tinless  the  cause  of  action 
arose  wholly  within  the  limits  of  this  state,  which  fact  must  be  established  on  the 
trial). 

Second.  When  the  defendant,  or  one  of  several  defendants,  has  absconded  with 
the  intention  to  defraud  his  creditors;  or. 

Third.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  sum- 
mons; or. 

Fourth.   So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or. 

Fifth.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  jurisdiction 
of  the  court,  with  the  intent  to  defraud  his  creditors;  or, 

Sixth.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the 
purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or. 

Seventh.    Has  f)roperty  or  rights  in  action,  which  he  conceals;  or, 

Eighth.  Has  assigned,  removed  or  disposed  of,  or  is  about  to  dispose  of,  his 
property,  or  a  part  thereof,  with  the  intent  to  defraud,  hinder  or  delay  his  credit- 
ors; or, 

Ninth.  Fraudulently  contracted  the  debt,  or  fraudulently  incurred  the  liability 
or  obligations  for  which  suit  is  about  to  be  or  has  been  brought;  or, 

Tenth.  Where  the  damages  for  which  action  is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony  or  misdemeanor,  or  the  seduction  of  any 
female;  or. 

Eleventh.  When  the  debtor  has  failed  to  pay  the  price  or  value  of  any  article 
or  thing  delivered,  which  by  contract  he  was  bound  to  pay  upon  delivery.  [Sec 
199,  as  amended,  L.  1870,  ch.  87,  sec.  4;  took  effect  May  12,  1870.] 

(4000)  §  191. — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought,  in  any  case  mentioned  in  the  iDreceding  section,  when 
there  is  filed  in  his  office  an  affidavit  of  the  plaintiff,  his  agent  or  attorney,  show- 
ing: 

First.   The  nature  of  the  plaintiff's  claim. 

Second.    That  it  is  just. 

Third.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover; 
and. 

Fourth.  The  existence  of  some  one  of  the  grounds  for  an  attachment  enumerated 
in  the  preceding  section. 

(4001)  §  192. — The  order  of  attachment  shall  not  be  issued  by  the  clerk  until  an 
undertaking  on  the  part  of  the  plaintiff  has  been  executed  by  one  or  more  suffi- 
cient sureties,  approved  by  the  clerk,  and  iiled  in  his  office,  in  a  sum  not  exceeding 
double  the  amount  of  the  plaintiff's  claim,  to  the  effect  that  the  plaintiff  shall  pay 
to  the  defendant  all  damages  which  he  may  sustain  by  reason  of  the  attachment,  if 
the  order  be  wrongfully  obtained;  but  no  undertaking  shall  be  required  where  the 
party  or  parties  defendant  are  all  non-residents  of  the  state  or  a  foreign  corpora- 
tion.    [Sec.  192,  as  amended,  L.  1870,  ch.  87,  sec.  5;  took  effect  May  12, 1870.] 

(4002)  §  193.-=-The  order  of  attachment  shall  be  directed  and  delivered  to  the 
sheriff.  It  shall  requu-e  him  to  attach  the  lands,  tenements,  goods,  chattels, 
stocks,  rights,  credits,  moneys  and  effects  of  the  defendant  in  his  coimty,  not  ex- 
empt by  law  from  being  applied  to  the  payment  of  the  plaintiff's  claim,  or  so 
much  thereof  as  will  satisfy  the  plaintiff's  claim,  to  be  stated  in  the  order  as  in 
the  affidavit,  and  the  probable  costs  of  the  action  not  exceeding  fifty  dollars. 


KANSAS.  523 

(4003)  §  194. -^Orders  of  attachment  may  be  issued  to  the  sheriffs  of  different 
counties,  and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued  at  tho 
Bame  time,  or  in  succession;  but  only  such  as  have  been  executed  shall  be  taxed  in 
the  costs,  unless  otherwise  du-ected  by  the  court. 

(4004)  §  195. — The  return  day  of  the  order  of  attachment,  when  issued  at  tho 
commencement  of  the  action,  shall  be  the  same  as  that  of  the  summons.  Whea 
issued  afterward,  it  shall  be  twenty  days  after  it  issued. 

EXECUTION  AND   RETUKN   THEREOF. 

(4005)  §  196. — "^Tiere  there  are  several  orders  of  attachment  against  the  same 
defendant,  they  shall  be  executed  in  the  order  in  which  they  are  received  by  the 
sheriff. 

(4006)  §  197. — The  order  of  attachment  shall  be  executed  by  the  sheriff  without 
delay.  He  shall  go  to  the  place  where  the  defendant's  property  may  be  found, 
and  declare  that,  by  virtue  of  said  order,  he  attaches  said  property  at  the  suit  of 
the  plaintiff;  and  the  officer,  with  two  householders,  who  shall  be  first  sworn  or 
affirmed  by  the  officer,  shall  make  a  true  inventory  and  appraisement  of  all  the 
property  attached,  which  shall  be  signed  by  the  officer  and  householders,  and  re- 
turned with  the  order. 

(4007)  §  198. — When  the  property  attached  is  real '  property,  the  officer  shall 
leave  with  the  occupant  thereof,  or,  if  there  be  no  occupant,  in  a  conspicuous  place 
thereon,  a  copy  of  the  order.  Where  it  is  personal  prox^erty,  and  he  can  get  pos- 
session, he  shall  take  the  same  into  his  custody,  and  hold  it  subject  to  the  order  of 
the  com-t. 

(4008)  §  199. — The  sheriff  shall  deliver  the  property  attached  to  the  person  in 
whose  possession  it  was  found,  upon  the  execution  by  such  laerson,  in  the  presence 
of  the  sheriff,  of  an  undertaking  to  the  plaintiff,  with  one  or  more  sufficient  sure- 
ties, resident  in  the  county,  to  the  effect  that  the  parties  to  the  same  are  bound,  in 
double  the  appraised  value  thereof,  that  the  property,  or  its  appraised  value  in 
money,  shall  be  forthcoming  to  answer  the  judgment  of  the  court  in  the  action; 
but  if  it  shall  appear  to  the  court  that  any  part  of  said  property  has  been  lost  or 
destroyed  by  unavoidable  accident,  the  value  thereof  shall  be  remitted  to  the  per- 
son so  bound. 

(4009)  §  200. — When  the  plaintiff,  his  agent  or  attorney,  shall  make  oath,  in 
writing,  that  he  has  good  reason  to,  and  does,  believe  that  any  person  or  corpora- 
tion, to  be  named,  has  property  of  the  defendant  (describing  the  ^ame)  in  his  jJos- 
session,  or  is  indebted  to  him,  he  shall  leave  with  such  garnishee  a  copy  of  the 
order  of  attachment,  with  a  written  notice  that  he  appear  and  answer,  as  provided 
herein. 

(4010)  §  201. — The  copy  of  the  order  and  notice  shall  be  served  upon  the  gar- 
nishee, as  follows:  If  he  be  a  person,  they  shall  be  served  upon  him  j^ersonally,  or 
left  at  his  usual  place  of  residence;  if  a  corporation,  they  shall  be  left  with  the 
president  or  other  head  of  the  same,  or  the  secretary,  cashier  or  managing  agent 
thereof. 

(4011)  §  202. — If  the  garnishee  do  not  reside  in  the  co;mty  in  which  action  ia 
brought,  the  plaintiff  shall  prepare  written  interrogatories,  to  be  answered  by  the 
garnishee,  a  copy  of  which  shall  be  served  in  the  same  manner  as  the  order  and 
notice. 

(4012)  §  203. — Different  attachments  of  the  same  property  may  be  made  by  the 
same  officer,  and  one  inventory  and  appraisement  shall  be  sufficient;  and  it  shall 
not  be  necessary  to  return  the  same  with  more  than  one  order. 

(4013)  §  204. — Where  property  is  under  attachment,  it  shall  be  attached  under 
subsequent  orders  as  follows: 

Fh-8t.  If  it  be  real  property,  it  shall  be  attached  in  the  manner  prescribed  in 
section  one  hundred  and  ninety-eight. 

Second.  If  it  be  personal  property  it  shall  be  attached  as  in  the  hands  of  the 
officer,  and  subject  to  any  previous  attachment. 

Third.  If  the  same  person  or  corporation  be  made  a  garnishee,  a  copy  of  the 
order  and  notice  shall  be  left  with  him  in  the  manner  prescribed  in  section  two 
hundred  and  one. 

(4014)  §  205. — The  officer  shall  return,  upon  every  order  of  attachment,  what  he 
has  done  under  it.  The  return  must  show  the  property  attached,  and  the  time  it 
was  attached;  when  garnishees  are  served,  their  names,  and  the  time  each  was 


524  KANSAS. 

served,  must  be  stated.     The  officer  shall  also  return  -with  the  order  all  undertak- 
ings given  under  it. 

(4015)  §  206. — An  order  of  attachment  binds  the  property  attached  from  the  time 
of  service,  and  the  garnishee  shall  stand  liable  to  the  plaintiff  in  attachment  for 
all  property,  moneys  and  credits  in  his  hands,  or  due  from  him  to  the  defendant, 
from  the  time  he  is  served  with  the  -written  notice  mentioned  in  section  two  hun- 
dred and  one;  but  where  property  is  attached  in  the  hands  of  a  bailee,  his  lien 
thereon  shall  not  be  affected  by  the  attachment. 

DISPOSITION  OF  ATTACHED   PEOPEETY. 

(4016)  §  207. — ^The  court,  or  any  judge  thereof,  during  vacation,  may,  on  appli- 
cation of  the  plaintiff,  and  on  good  cause  sho^uni,  appoint  a  receiver,  who  shall  take 
an  oath  faithfully  to  discharge  bis  duty,  and  shall  give  an  undertaking  to  the  state 
of  Kansas,  in  such  sum  as  the  court  or  judge  may  direct,  and  with  such  security 
as  shall  be  approved  by  the  clerk  of  such  com-t,  for  the  faithful  performance  of  hia 
duty  as  such  receiver,  and  to  pay  over  all  moneys  and  account  for  all  property  which 
may  come  into  his  hands  by  virtue  of  his  appointment,  at  such  times  and  in  such 
manner  as  the  court  may  direct. 

(4017)  §  208. — Suck  receiver  shall  take  possession  of  all  notes,  due-bills,  books 
of  account,  accounts  and  all  other  evidences  of  debt  that  have  been  taken,  l:iy  the 
sheriff  or  other  ofQcer,  as  the  property  of  the  defendant  in  attachment,  and  shall 
proceed  to  settle  and  collect  the  same.  For  that  pm-pose  he  may  commence  and 
maintain  actions  in  his  own  name  as  such  receiver;  but  in  such  actions,  no  right  of 
defense  shall  be  impaired  or  affected. 

(4018)  §  209. — Such  receiver  shall  forthwith  give  notice  of  his  appointment  to 
the  persons  indebted  to  the  defendant  in  attachment.  The  notice  shall  be 
written  or  printed,  and  shall  be  served  on  the  debtor  or  debtors,  by  copy  person- 
ally, or  by  copy  left  at  the  residence  of  the  debtor  or  debtors;  and  from  the  date 
of  such  service,  the  debtors  shall  stand  liable  to  the  plaintiff  in  attachment  for  the 
amount  of  moneys  or  credits  in  their  hands,  or  due  from  them  to  the  defendant  ia 
attachment,  and  shall  account  therefor  to  the  receiver. 

(4019)  §  210.  — Such  receiver  shall,  when  required,  report  his  proceedings  to  the 
court,  and  hold  all  moneys  collected  by  him,  and  the  property  which  may  come 
into  his  hands,  subject  to  the  order  of  the  coirrt. 

(4020)  §  211. — Where  a  receiver  is  not  appointed  by  the  court  or  a  judge  thereof, 
as  provided  in  section  two  hundred  and  seven,  the  sheriff  or  other  officer  attaching 
the  property  shall  have  all  the  joowers  and  perform  all  the  duties  of  a  receiver 
appointed  by  the  court  or  judge,  and  may,  if  necessary,  commence  and  maintain 
actions  in  his  own  name  as  such  officer.  He  may  be  required  to  give  security  other 
than  his  oSicial  undertaking. 

(4021)  §  212. — The  court  shall  make  proper  orders  for  the  preservation  of  the 

Eroperty  during  the  pendency  of  the  suit;  it  may  direct  a  sale  of  property,  when, 
ecause  of  its  perishable  nature,  or  of  the  costs  of  keeping  it,  a  sale  will  be  for 
the  benefit  of  the  parties.  In  vacation,  such  sale  may  be  ordered  by  the  judge  of 
the  court.  The  sale  shall  be  public,  after  such  advertisement  as  is  prescrilied  for 
the  sale  of  like  pro]ierty  on  execution,  and  shall  be  made  in  such  manner  and  upon 
such  terms  of  credit,  with  security,  as  the  court  or  judge,  having  regard  to  the 
probable  duration  of  the  action,  may  direct.  The  proceeds,  if  collected  liy  the 
sheriff,  with  all  the  money  received  by  him  from  garnishees,  shall  be  held  and  paid 
over  by  him,  under  the  same  requirement  and  responsibility  of  himself  and  sure- 
ties, as  are  provided  in  respect  to  money  deposited  in  lieu  of  bail. 

PEOCEEDINGS   DPON  ATTACHMENT. 

(4022)  §  21.3. — If  the  defendant,  or  other  person  on  his  behalf,  at  any  time  be- 
fore judgment,  caiise  an  undertaking  to  be  executed  to  the  plaintiff,  by  one  or 
more  sureties,  resident  in  the  county,  to  be  approved  by  the  court,  in  double  the 
amount  of  the  plaintiff's  claim,  as  stated  in  his  affidavit,  to  the  effect  that  the  de- 
fendant shall  perform  the  judgment  of  the  court,  the  attachment  in  such  action 
shall  be  discharged,  and  restitution  made  of  any  property  taken  under  it  or  the 
proceeds  thereof.  Such  undertaking  shall,  also,  discharge  the  liability  of  a  gar- 
nishee in  such  action  for  any  property  of  the  defendant  in  his  hands. 

(4023)  §  214. — The  undertaking  mentioned  in  the  last  section  may,  in  vacation, 
be  executed  in  the  presence  of  the  sheriff  having  the  order  of  attachment  in  hia 
hands,  or  after  the  return  of  inQ  order,  before  the  clerk,  with  the  same  effect  as  if 


1 


KANSAS,  &25 

executecl  in  co'jrt,  tlie  sureties  in  either  case  to  he  approved  "by  tlie  officer  before 
whom  the  undertaking'  is  executed. 

(4024)  §  215.— The  garnishee  shall  answer  as  follows:  If  the  order  of  attachment 
be  returned  during-  a  term  of  the  court,  and  ten  days  before  the  close  thereof,  he 
shall  answer  at  that  term,  on  a  day  to  be  named  in  the  notice,  not  less  than  ten 
days  from  the  date  of  service.  If  the  order  be  returned  during  vacation,  he  shall 
answer  on  the  first  day  of  the  next  term  after  its  retxrrn.  If  the  garnishee  reside 
cut  of  the  county  in  which  the  action  is  brought,  he  shall  file  -RTitten  answers  to 
the  interrogatories  served  upon  him  within  the  time  hereinbefore  provided,  which 
answer  shall  be  sworn  to,  subscribed  and  certified  in  the  same  manner  as  an  affi- 
davit. If  he  reside  in  the  county  in  which  the  action  is  brought,  he  shall  appear 
in  court  and  be  examined.  A  garnishee  shall  answer,  under  oath,  all  cjuestions  or 
interrogatories  put  to  him  touching  the  property,  of  every  description,  of  the  de- 
fendant, in  his  possession  or  under  Lis  control,  and  shall  disclose  truly  the  amount 
cu-ing  by  him  to  the  defendant,  at  or  after  the  service  of  notice,  whether  due  or 
not;  and  in  case  of  a  corporation,  any  stock  therein  hejd  by  or  for  the  benefit  of 
the  defendant,  at  or  after  the  service  of  notice. 

(4025)  §  215ft. — AVhen  any  corporation  shall  be  notified  to  appear  and  answer  a3 
garnishee  of  any  defendant,  pursuant  to  sections  £00,  201  and  202  of  said  chapter 
80,  the  answer,  required  to  be  made  by  such  garnishee  by  section  215  of  said  chap- 
ter, shall  not  be  required  in  anj'  case  in  less  than  fifteen  days  from  the  service  of 
the  order  and  notice,  and  interrogatories,  if  any;  and  when  neither  the  president  or 
other  head  of  such  corporation,  nor  the  secretary,  cashier,  or  managing  agent 
thereof,  shall  reside  or  live,  or  keep  his  office  or  place  of  business  in  the  county 
where  the  action  is  pending,  the  answer  of  such  garnishee  shall  not  be  required  in 
less  than  thirty  days  from  the  service  of  the  order  and  notice,  and  interrogatories, 
if  any.     [L.  1870,  oh.  87,  sec.  6;  took  effect  j\Iay  12,  1870.] 

(402G)  §  216. — A  garnishee  may  pay  the  money  owing  to  the  defendant  by  him 
to  the  sheriix  having  the  order  of  attachment,  or  into  court.  He  shall  ?je  dis- 
charged from  liability  to  the  defendant  for  any  money  so  paid,  not  exceeding  the 
plaintiff's  claim.  Ho  shall  not  be  subject  to  costs,  beyond  those  caused  by  his  re- 
sistance of  the  claim  against  him;  and  if  he  disclose  the  proi^erty  in  his  hands,  or 
the  true  amount  owing  by  him,  and  deliver  and  pay  the  same,  according  to  the 
order  of  the  court,  he  shall  be  allowed  his  costs. 

(4027)  §  217. — If  the  garnishee  do  not  answer  as  required  by  section  two  hun- 
dred and  fifteen,  the  court  may  proceed  against  him  by  attachment  as  for  con- 
tempt. 

(4028)  §  218. — If  the  garnishee  answer,  and  it  is  discovered  on  his  examination, 
that,  at  or  after  the  service  of  the  order  cf  attachment  and  notice  upon  him,  he 
was  f)ossessed  of  any  property  of  the  defendant,  or  was  indebted  to  him,  the  court 
may  order  the  delivery  of  such  property  and  pajonent  of  the  amount  owing  by 
the  garnishee  into  the  com't;  or  the  court  may  permit  the  garnishee  to  retain  the 
property  or  the  amount  owing,  upon  the  execution  of  an  undertaking  to  the  plaint- 
iff, by  one  or  more  sufficient  sureties,  to  the  effect  that  the  amount  shall  be  paid  or 
the  property  forthcoming,  as  the  court  may  direct. 

(4020)  §  219. — If  the  garnishee  fail  to  answer,  or  if  he  answer  and  his  disclosure 
is  not  satisfactory  to  the  plaintiff,  or  if  he  fail  to  comply  vrith  the  order  c:  lie 
court  to  deliver  the  property  and  pay  the  money  owing  into  court,  or  give  the 
undertaking  required  in  the  preceding  section,  the  plaintiff  may  proceed  against 
him  in  an  action  by  filing  a  petition  in  his  own  name,  as  in  other  cases,  and  causing 
a  summons  to  be  issued  upon  it;  and  thereupon  such  proceedings  may  be  had 
as  in  other  actions,  and  judgment  may  be  rendered  in  favor  of  the  plaintiff,  for 
the  amount  of  property  and  credits  of  every  kind,  of  che  defendant,  in  the  pos- 
session of  the  garnishee,  and  for  what  shall  appear  to  be  owing  by  him  to  the  defend- 
ant, and  for  the  costs  of  the  proceedings  against  the  garnishee.  If  the  plaintiff" 
proceed  against  the  garnishee  by  action,  for  the  cause  that  his  disclosure  was. 
unsatisfactory,  unless  it  appear  in  the  action  that  such  disclosure  was  incomplete, 
the  plaintiff  shall  pay  the  costs  of  such  action.  The  judgment;  in  this  action  may 
be  enforced  as  judgments  in  other  cases.  When  the  claims  of 'plaintiffs  i  •.  ..^lach- 
ment  are  satisfied,  the  defendant  in  attachment  may,  on  motion,  be  substituted  as 
the  ijlaintiff  in  this  judgment. 

(4030)  §  220. — Final  jud.gment  shall  not  be  rendered  against  the  garnishee  until 
the  action  against  the  defendant  in  attachment  has  been  determined;  and  if, 
in  such  action,  judgment  be  rendered  for  the  defendant  in  attachment,  the  gar- 
nishee shall  be  discharged  and  recover  costs.  If  the  plaintiff  shall  recover  agamst 
tte  defendant  in  attachment,  and  the  garnishee  shall  deliver  up  aU  the  property. 


526  KAi^Aa 

moneys  and  credits  of  fhe  defendant  in  tis  possession,  and  pay  all  tte  moneys 
from  him  due,  as  the  court  may  order,  the  garnishee  shall  be  discharged,  and  the 
costs  of  the  proceedings  against  him  shall  be  paid  out  of  the  property  and  moneys 
so  surrendered,  or  as  the  court  may  think  right  and  proper;  and  on  final  judgment 
against  the  garnishee,  execution  may  be  issued  as  in  other  cases. 

(4031)  §  221.— If  judgment  be  rendered  in  the  action  for  the  defendant,  the 
attachment  shall  be  discharged,  and  the  property  attached  or  its  proceeds,  shall 
be  returned  to  him. 

(4032)  §  222. — If  judgment  be  rendered  for  the  plaintiff,  it  shall  be  satisfied  as 
follows:  So  much  of  the  property  remaining  in  the  hands  of  the  officer,  after 
ajiplying  the  mone  j-s  arising  from  the  sale  of  perisliable  property,  and  so  much  of  the 
personal  property  and  lands  and  tenements,  if  any,  whether  held  by  legal  or 
equitable  title,  as  may  be  necessary  to  satisfy  the  judgment,  shall  be  sold  by  order 
of  the  court,  under  the  same  restrictions  and  regulations  as  if  the  same  had  been 
levied  on  by  execution;  and  the  money  arising  therefrom,  with  the  amoxmt  which 
may  be  recovered  from  the  garnishee,  shall  be  applied  to  satisfy  the  judgment  and 
costs.  If  there  be  not  enough  to  satisfy  the  same,  the  judgment  shall  stand,  and 
execution  may  issue  thereon  for  the  residue,  in  all  respects  as  in  other  cases.  Any 
surplus  of  the  attached  i^roperty  or  its  proceeds  shall  be  returned  to  the  defendant. 

(4033)  §  223. — The  court  may  compel  the  delivery  to  the  sheriff,  for  sale,  of  any 
of  the  attached  property  for  which  an  undertaking  may  have  been  given,  and  may 
proceed  stimmarily,  on  such  undertaking,  to  enforce  the  delivery  of  the  property, 
or  the  paj'ment  of  such  sum  as  may  be  due  upon  the  undertaJdng,  by  niles  and 
attachments,  as  in  case  of  contempt. 

(4034)  §  224. — The  court  may  order  the  sheriff  to  repossess  himself,  for  the  pur- 
pose of  selling  it,  of  any  of  the  attached  property,  which  may  have  passed  out  of 
his  hands,  without  having  been  sold  or  converted  into  money;  and  the  sheriff  shall, 
under  such  order,  have  the  same  power  to  take  the  property  as  he  would  have  un- 
der an  order  of  attachment. 

(4035)  §  225. — T\Tiere  several  attachments  are  executed  upon  the  same  property, 
or  the  same  persons  are  made  garnishees,  the  court,  on  motion  of  any  of  the  plaint- 
iffs, may  order  a  reference,  to  ascertain  and  rejwrt  the  amounts  and  priorities  of 
the  several  attachments,  or  may  determine  any  such  amormt  and  priorities  without 
such  reference. 

GEXER.VL   PEOVISIOXS. 

(403G)  §  226. — From  the  time  of  the  issuing  of  the  order  of  attachment,  the 
court  shall  be  deemed  to  have  acquired  jurisdiction,  and  to  have  control  of  all  sub- 
sequent proceedings  under  the  attachment;  and  if,  after  the  issuing  of  the  order, 
the  defendant  being  a  person,  should  die,  or  a  corporation,  and  its  charter  should 
expire  by  limitation,  forfeiture  or  otherwise,  the  proceedings  shall  be  carried  on; 
bui  in  all  such  cases,  other  than  where  the  defendant  was  a  foreign  corporation,  hia 
legal  representatives  shall  be  made  parties  to  the  action. 

(4037)_  §  227. — The  defendant  may,  at  any  time  before  judgment,  after  reason- 
able notice  to  the  plaintiff,  move  the  court  for  additional  security  on  the  part  of 
the_ plaintiff;  and  if,  on  such  motion,  the  court  is  satisfied  that  the  surety  in  the 
plaintiff's  undertaking  has  removed  from  this  state,  or  is  not  sufficient  for  the 
amount  thereof,  it  may  vacate  tne  order  of  attachment  and  direct  restitution  of 
any  projierty  taken  under  it,  unless,  in  a  reasonable  time,  to  be  fixed  by  the  court, 
sufficient  security  be  given  by  the  plaintiff. 

(4038^  §  223.  — The  defendant  may,  at  any  time  before  judgment,  upon  reason- 
able notice  to  the  plaintiff,  move  to  discharge  an  attachment,  as  to  the  whole  or 
part  of  the  property  attached. 

(4039)  §  229. — If  the  motion  be  made  upon  affidavits,  on  the  part  of  the  defend- 
ant, or  i^apers  and  evidence  in  the  case,  but  not  otherwise,  the  plaintiff  may  oppose 
the  same  by  affidavits  or  other  evidence,  in  addition  to  that  on  which  the  order  of 
attachment  was  made. 

ATTACHMENTS   IN   CEETAIN  ACTIONS. 

(4040)  §  230. — Where  a  debtor  has  sold,  conveyed  or  otherwise  disposed  of  hia 
property,  with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to  hinder 
or  delay  them  in  the  collection  of  their  debts,  or  is  about  to  make  such  sale  or  coh* 
veyance  or  dis^josition  of  his  property,  with  such  fraudulent  intent,  or  is  about  to 
remove  his  property,  or  a  material  part  thereof,  with  the  intent  or  to  the  effect  dt 
cheating  co*  defrauding  bis  creditors,  or  of  hinderiog  or  delaying  them  in  the  col- 


KENTUCKY.  627 

lection  of  their  debts,  a  creditor  may  bring  an  action  on  his  claim  before  it  is  due, 

and  have  an  attachment  against  the  property  of  the  debtor. 

(4041)  §  231. — The  attachment  authorized  by  the  last  section  maybe  granted  by 
the  court  in  which  the  action  is  brought,  or  by  the  judge  thereof,  or,  in  his  ab- 
sence from  the  county,  by  the  probate  judge  of  the  county  in  which  the  action  is 
brought;  but  before  such  action  shall  be  brought,  or  such  attachment  shall  be 
granted,  the  plaintiff,  or  his  agent  or  attorney,  shall  make  an  oath  in  writing, 
showing  the  nature  and  amount  of  the  plaintiff's  claim,  that  it  is  just,  when  the 
same  will  become  due,  and  the  existence  of  some  one  of  the  grounds  for  attachment 
enumerated  in  the  preceding  section.  [Sec.  231,  as  amended  L.  1883,  ch.  122,  sec. 
1;  took  effect  April  5,  1883.] 

(4042)  §  232. — If  the  court  or  judge  refuse  to  grant  an  order  of  attachment,  the 
action  shall  be  dismissed,  but  without  prejudice  to  a  future  action;  and  in  all  such 
actions,  application  for  an  attachment  must  be  made. 

(4043)  §  233. — The  order  of  the  court  or  judge  granting  the  attachment  shall 
specify  the  amount  for  which  it  is  allowed,  not  exceeding  a  sum  sufficient  to  sat- 
isfy the  plaintiff's  claim,  and  the  probable  costs  of  the  action. 

(4044)  §  234. — The  order  of  attachment,  as  granted  by  the  court  or  judge,  shall 
not  be  issued  by  the  clerk  until  there  has  been  executed,  in  his  office,  an  undertak- 
ing, on  the  part  of  the  plaintiff,  as  in  case  of  any  ordinary  attachment. 

(4045)  §  235. — The  plaintiS  in  such  action  shall  not  have  judgment  on  his 
claim  before  it  is  due,  but  the  proceedings  on  the  attachment  may  be  conducted 
without  delay. 

(4046)  §  236. — The  proceedings  applicable  to  attachments  issued  by  the  clerk  in 
ordinary  cases,  shall  regulate  the  attachment  granted  by  the  court  or  judge,  as  far 

as  applicable. 

Attachment  in  justice's  court — §§  4553,  4594-4605. 
Eeview  of  order  discharging  or  modifying  attachment — §  4381.. 
Attachment  for  rent — §  3230;  lien  on  crops — §  3231. 
Exemption.s— §§  2655-2660. 


KENTUCKY. 

[Bullitt's  Codes,  1876.] 


GROUNDS  OF  ATTACHMENT. 

§  194  (221). — The  plaintiff  may,  at  or  after  the  commencement  of  an  action,  have 
an  attachment  against  the  property  of  the  defendant,  including  garnishees,  as  is 
provided  in  section  227,  as  a  security  for  the  satisfaction  of  such  judgment  as  may 
be  recovered — 

I.  In  an  action  for  the  recovery  of  money  against — 

1.  A  defendant  who  is  a  foreign  corporation,  or  a  non-resident  of  the  state;  or, 

2.  Who  has  been  absent  herefrom  four  months;  or, 

S.  Has  departed  herefrom  with  intent  to  defraud  his  creditors;  or, 

4.  Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or, 

5.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or, 

6.  Is  about  to  remove,  or  has  removed,  his  property,  or  a  material  part  thereof, 
out  of  this  state,  not  leaving  enough  therein  to  satisfy  the  plaintiff's  claim,  or  the 
claims  of  said  defendant's  creditors;  or, 

7.  Has  sold,  conveyed,  or  otherwise  disposed  of,  his  property,  or  suffered  or 
permitted  it  to  be  sold,  with  the  fraudulent  intent  to  cheat,  hinder,  or  delay  his 
creditors;  or,  ' 

8.  Is  about  to  sell,  convey,  or  otherwise  dispose  of  his  property,  with  such  in- 
tent. But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defendant 
ia  a  foreign  corporation,  or  a  non-resident  of  this  state,  for  any  claim  other  than  a 


528  KENTUCKY. 

debt  or  demand  arisingr  upon  a  contract,  express  or  implied,  or  a  judgment  or 
award. 

II.  In  an  action  for  the  recovery  of  money  due  upon  a  contract,  judc,Tnent,  or 
award,  if  the  defendant  have  no  property  in  this  slate  subject  to  exesution,  or  not 
enough  thereof  to  satisfy  the  plaintiif  "s  demand,  and  the  collection  of  the  demand 
will  be  endangered  by  delay  in  obtaining  judgment  or  a  return  of  no  property 
found. 

III.  In  an  action  to  recover  the  possession  of  personal  property  which  has  been 
ordered  to  be  delivered  to  the  plaintiif,  and  which  property,  or  part  whereof,  has 
been  disposed  of,  concealed,  or  removed,  so  that  the  order  for  its  delivery  cannot 
be  executed  by  the  sheriff. 

§  105. — The  provisions  of  chapter  60,  article  2,  of  the  general  statutes,  concern- 
ing attachments  for  rent,  are  adopted  as  part  of  this  code,  subject  to  any  modilica- 
tions  herein  contained. 

HOW  AN  ATTACHMENT   13   OBTAINED. 

§  196  (222). — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought  or  pending,  in  any  case  mentioned  in  section  194,  sub- 
sections 1  and  2,  if  an  affidavit  of  the  plaintiif  be  filed  in  his  office,  showing — 

1.  The  nature  of  the  plaintiff's  claim, 

2.  That  it  is  just. 

3.  The  sum  which  the  aflSant  believes  the  plaintiff  ought  to  recover;  and, 

4.  The  existence  of  any  of  the  grounds  for  an  attachment  mentioned  in  sub- 
sections 1  and  2  of  section  194;  or,  in  the  case  mentioned  in  subsection  3  of  section 
194,  if  it  be  shown  by  such  afiidavit,  or  by  the  return  of  the  sheriff  upon  the  order 
for  the  delivery  of  the  property  claimed,  that  the  facts  mentioned  in  that  subdi- 
vision exist. 

§  197  (223). — A  return  by  the  sheriff  upon  a  summons  against  a  defendant,  that 
he  has  left  the  county  to  avoid  the  service  of  the  summons,  or  has  concealed  him- 
self therein  for  that  i^urpose,  is  equivalent  to  the  statement  of  the  fact  in  the 
plaintiff's  affidavit. 

§  198  (224). — The  order  of  attachment  shall  not  be  issued  by  the  clerk  until  a 
bond  has  been  executed  in  his  office,  by  one  or  more  sufficient  sureties  of  the  plaint- 
iff, to  the  effect  that  the  plaintiff  shall  pay  to  the  defendant  all  damages  which  he 
may  sustain  by  reason  of  the  attachment,  if  the  order  be  wrongfully  obtained,  not 
exceeding  double  the  amount  of  the  iDlaintiff's  claim. 

§  199  (225). — The  order  of  attachment  shall  be  directed  and  delivered  to  the 
sheriff,  with  as  many  copies  thereof  as  the  plaintiff  may  direct.  It  shall  require 
him  to  attach  and  safely  keep  the  property  of  the  defendant  in  his  county  not  ex- 
empt from  execution,  or  so  much  thereof  as  will  sati.sfy  the  plaintiff's  claim  speci- 
fied in  his  affidavit,  which  shall  be  stated  in  the  order,  and  the  probable  costs  of 
the  action,  not  exceeding  thirty  dollars;  also,  to  summon  the  garnishees  to  answer 
in  the  action  on  the  return  day  of  the  order,  and  to  make  due  return  thereof.  The 
order  shall  be  made  returnable  as  an  order  of  arrest  is  directed  to  be  rctiurned. 

§  200. — The  provisions  of  sections  5,  6,  7,  and  8,  of  article  xiii,  of  chapter  38, 
of  the  general  statutes,  are  made  applicable  to  attachments  under  this  code. 

§  201  (22G). — Orders  of  attachment  may  be  issued  to  the  sheriff  of  any  county; 
and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same  time 
or  in  succession.  But  such  only  as  have  been  executed  in  whole  or  in  imrt  shall  be 
taxed  in  the  costs,  unless  otherwise  directed  by  the  court. 

EXECUTION   AND   EETDRN   OF   ATTACHMENT. 

§  202  (227). — Several  orders  of  attachment  against  a  defendant  shall  have  prece- 
dence according  to  the  time  of  their  delivery  to  the  sheriff,  subj  act  to  the  provi- 
sions of  section  207. 

§  203  (228). — The  order  of  attachment  shall  be  executed  by  the  sheriff  without 
delay  in  the  follo\%dng  manner: 

1.  Upon  real  propertj',  by  leaving  with  the  occupant  thereof,  or,  if  there  be  no 
occupant,  in  a  conspicuous  place  thereon,  a  copy  of  the  order. 

2.  Upon  personal  x^roperty  capable  of  manual  delivery,  by  taking  it  into  his 
custody  and  holding  it  subject  to  the  order  of  the  court;  or,  if  it  be  held  by  another 
officer  under  process  or  under  a  distress  for  taxes,  by  delivering  to  him  a  copy  of 
the  order,  with  a  notice  specifying  the  pro^ierty  attached. 

3.  Upon  other  personal  property,  by  delivermg  a  copy  of  the  order,  ^vith  a  no- 
tice specifying  the  property  attached,  to  the  person  holding  it;  or,  as  to  a  debt  or 


KENTUCKY.  529 

demand,  to  the  person  owinj?  it;  or,  as  to  stock  in  a  corporation,  or  property  held, 
or  a  debt  or  demand  owing,  by  it,  to  the  officer  or  agent  upon  whom  a  summona 
may  be  served  according  to  the  provisions  of  section  51,  and  by  summoning  the 
person  or  corporation  to  answer  as  a  garnishee  in  the  action.  The  sheriff  shall 
deliver  copies  to,  and  summon,  such  persons  as  garnishees  as  the  plaintiff  may 
direct. 

§  204. — It  shall  be  the  duty  of  every  officer  upon  whom  an  order  of  attachment 
may  be  executed  pursuant  to  section  203,  subsection  2,  to  furnish  an  inventory  and 
appraisement  of  the  attached  property  held  by  him,  or  copies  thereof,  and  a  state- 
ment of  the  distress  or  process  under  which,  and  of  the  sum  for  which,  it  is  held, 
to  the  officer  executing  the  attachment,  and  to  hold  so  much  of  the  attached  prop- 
erty, or  of  its  proceeds,  as  may  not  be  necessary  to  satisfy  such  process  or  distress, 
subject  to  the  order  of  the  court  from  Avhich  the  attachment  issued;  and  his  failure 
to  perform  either  of  those  duties  may  be  punished  by  the  court  as  a  contempt. 

§  203  (229). — It  shall  be  the  duty  of  every  person  mentioned  in  subsection  3  of 
section  203,  to  whom  the  sheriff  shall  apply  therefor,  to  furnish  him  a  certificate  of 
the  number  of  shares  of  the  defendant  in  the  stock  of  the  corporation,  or  a  descrip- 
tion of  the  property  held  by  such  corporation  or  person  for  the  benefit  of  the  de- 
fendant, or  belonging  to  him,  or  the  amount  of  the  debt  owing  to  the  defendant, 
by  such  coi-poration  or  person,  whether  due  or  not;  and  a  failure  to  perform  this 
duty  may  be  punished  by  the  court  as  a  contempt. 

§  200  (230). — The  defendant's  personal  property  shall  be  first  taken  under  an 
attachment;  if  eaough  thereof  be  not  found,  then  his  real  property. 

§  207  (231).— If  the  property  to  be  attached  be  a  fund  in  court,  the  attachment 
shall  be  executed  by  leaving  with  the  clerk  of  the  court  a  copy  thereof,  with  a  no- 
tice specifying  the  fund;  and  if  several  orders  of  attachment  l^e  executed  upon  such 
fund  on  the  same  day,  they  shall  be  satisfied  out  of  it  ratably. 

§  20S  (232). — The  sheriff  shall  not,  in  executing  an  attachment  upon  personal 
property  held  by  the  defendant  in  the  attachment  jointly  or  in  common  with  an- 
other i^erson,  take  possession  of  such  property,  imtil  a  bond  be  executed  to  such 
other  person,  by  one  or  more  sufficient  sm'eties  of  the  plaintiff,  to  the  effect  that 
he  shall  pay  to  such  person  the  damages  he  may  sustain  by  the  wrongful  suing  out 
of  the  order,  not  exceeding  double  the  amount  of  the  plaintiff's  claim. 

§  209. — In  an  action  against  joint  debtors,  in  which  an  interest  in  joint  property 

is  attached  under  an  order  of  attachment  against  only  part  of  them,  if  judgment  be 
rendered  against  all  of  the  defendants,  and  the  attachment  be  sustained,  the  court 
may  subject  the  whole  of  the  joint  property,  then  undisposed  of,  to  the  satisfaction 
of  the  judgment. 

§  210. — If  attachments,  levied  on  the  same  property,  in  whole  or  in  part,  be 
pending  in  different  courts — 

1.  If  the  courts  be  of  equal  jurisdiction,  either  of  them,  or  during  vacation  the 
judge  thereof,  may  order  the  removal  of  so  many  of  said  attachments,  and  of  the 
actions  in  which  tliey  may  have  been  issued,  as  may  be  necessary  to  have  all  of 
them  in  one  of  said  courts. 

2.  If  the  courts  be  not  of  equal  jurisdiction,  one  of  said  courts  of  superior  jm'is- 
diction,  or  the  judge  thereof  during  vacation,  may  make  said  order  of  removal  to 
one  of  said  courts  of  superior  jurisdiction. 

3.  Such  or;ler  may  be  made  on  the  motion  of  any  party  to  either  of  said  ac- 
tions, after  reasonable  notice  to  all  other  parties  to  said  actions  or  to  their  attor- 
neys; and  affidavits  may  be  read  for  or  against  the  motion. 

4.  Clerks  of  courts  shall,  pursuant  to  such  order,  immediately  remove  the 
papers  in  the  case  therein  mentioned,  accompanied  by  certified  copies  of  the  orders 
made  therein;  and,  if  the  removal  be  to  another  county,  the  clerk  shall  have  the 
fees  allowed  by  law  for  like  services  in  cases  of  change  of  venue,  to  be  paid  in  ad- 
vance by  the  applicant  for  the  removal,  and  to  be  taxed  in  the  costs,  and  finally 
paid  out  of  the  attached  funds,  or  by  such  of  the  parties  as  the  court  may  order. 

§  211. — If  an  officer  who  levies,  or  is  required  to  levy,  an  attachment  upon  per- 
sonal  property  douljt  whether  it  is  subject  to  the  attachment,  he  may  give  to  the 
plaintiff  therein,  or  to  his  agent  or  attorney,  -wTitten  notice  that  an  indemnifying  bond 
is  required.  If  the  i^laintiff  cause  a  Ijond  to  be  executed,  with  good  surety,  to  be 
approved  by  the  officer,  or  the  judge  of  the  court  from  which  the  attachment  issued, 
to  the  e.'i'ect  that  the  oljligors  will  indemnify  the  officer  against  any  damage  he  may 
sustain  by  reason  of  the  levy  of  the  attachment,  such  officer  shall  proceed  to  exe- 
cute the  attachment.  If  the  attachment  have  not  been  levied,  the  officer  may 
refuse  to  levy  it  unless  bond  be  executed  as  above  provided;  or,  if  the  attachment 
II  Attacument— 9 


530  KENTUCKY. 

have  been  levied,  the  officer  may  release  the  property,  unless  the  bond  be  executed 
■within  a  reasonable  time  after  the  notice  requiring  it  shall  have  been  given. 

§  212  (233).— An  attachment  binds  the  defendant's  property,  in  the  county, 
which  might  be  seized  under  an  execution  against  him,  from  the  time  of  the  deliv- 
ery of  the  order  to  the  sheriff,  in  the  same  manner  as  an  execution  would  bind  it; 
and  the  lien  of  the  plaintiff  is  completed  upon  any  property  or  demand  of  the 
defendant  by  executing  the  order  upon  it  in  the  manner  directed  in  this  article. 

§  213  (234). — If,  after  an  order  of  attachment  has  been  placed  in  the  hands  of 
the  sheriff,  any  property  of  the  defendant  be  removed  from  the  county,  the  sheriff 
may  pursue  and  attach  it  in  another  county  within  twenty-four  hours  after  the 
removal. 

§  214  (235)._ — The  sheriff  may  deliver  any  attached  property  to  the  person  in 
whose  possession  it  is  found,  upon  the  execution,  in  the  presence  of  the  sheriff,  of 
a  bond  to  the  plaintiff,  by  such  person,  with  one  or  more  sufficient  stireties,  to  the 
effect  that  the  obligors  are  bound,  in  double  the  value  of  the  property,  that  the 
defendant  shall  perform  the  judgment  of  the  court  iu  the  action,  or  that  the  prop- 
erty or  its  value  shall  be  forthcoming  and  subject  to  the  order  of  the  court. 

§  215  (230). — For  the  purpose  of  taking  this  bond,  the  sheriff  shall  cause  the 
property  to  be  appraised  by  three  cUsinterested  housekeepers,  to  be  selected  and 
Bwom  by  him  to  make  a  fair  appraisement,  and  who  shall  indorse  their  appraise- 
ment on  the  order  of  attachment. 

§  216  (237). — In  any  proceeding  on  this  bond  it  shall  not  be  a  defense  that  the 
property  was  not  subject  to  the  attachment. 

§  217  (238). — The  sheriff  shall  return  upon  every  order  of  attachmept  what  he 
has  done  under  it.  The  return  must  show  the  property  attached,  when  it  was  at- 
tached, and  the  disposition  made  of  it.  If  garnishees  be  summoned,  their  names 
and  the  time  when  each  was  summoned  must  be  stated.  And  if  real  property  be 
.  attached,  the  sheriff  shall  describe  it  ■«'ith  sufficient  certainty  to  identify  it,  and,-  if 
he  can  do  so,  he  shall  refer  to  the  deed  or  title  under  which  the  defendant  holds 
it.     He  shall  return,  with  the  order,  all  bonds  taken  under  it. 

DISPOSITION   OP  ATTACHED  PEOPEETT. 

§  218  (239). — The  court  in  which  the  action  is  pending,  or  during  vacation  the 
judge  thereof,  or,  if  he  be  absent  from  the  county,  the  presiding  judge  of  the  county 
com-t,  shall  make  j^roper  orders  for  the  preservation  and  use  of  attached  i^roperty; 
and  for  the  sale  of  it,  if,  by  reason  of  its  perishable  nature,  or  the  cost  of  keeping 
it,  a  sale  of  it  •would  be  beneficial  to  the  parties;  and  for  the  collection  and  pay- 
m.ent  into  court  of  attached  funds  and  choses  in  action;  and,  for  any  of  thpse  pur- 
poses, may  make  an  order  appointing  a  receiver,  with  authority  to  act  as  the  court 
may  direct,  who  shall  give  bond  with  good  surety,  to  be  approved  by  the  comt  or 
judge,  for  the  faithful  performance  of  his  duties:  but  neither  of  those  orders  shall 
be  made  diu-ing  vacation,  except  after  reasonable  notice,  in  writing,  of  the  time 
and  place  of  the  application  therefor,  to  the  opposite  party  or  his  attorney,  if  either 
of  them  reside  in  the  county  in  which  the  action  is  pending.  Such  sale  shaU  be 
made  publicly,  after  advertisement,  and  upon  such  terms  of  credit,  with  good  se- 
curity, as  the  coiurt  or  judge,  haviag  regard  to  the  probable  duration  of  the  action, 
may  direct.  Moneys  received  by  the  sheriff  upon  sales  of  attached  property,  or 
from  garnishees,  shall  be  held  and.  paid  by  him  under  the  same  requirements  and 
responsibilities  of  himself  and  his  sureties  as  are  provided  in  respect  to  money  de- 
;  posited  in  lieu  of  bail. 

§  219  (240). — The  sheriff  or  receiver  shaU  be  allowed  by  the  court  the  necessary 
expenses  of  keeping  the  attached  property,  to  be  paid  by  the  jjlaratiff  and  taxed  in 
the  costs.  In  the  case  of  a  steamboat  attached,  he  may  be  allowed,  for  his  own 
superintendence  thereof,  not  exceeding  one  dollar  per  day,  and  siich  sums  as  he 
may  actually  expend  for  the  safe-keeping  of  the  boat,  not  to  exceed,  for  the  pay  of 
persons  employed,  the  usual  wages  of  a  mate  and  a  deck-hand,  imless  more  than  two 
f)ersons  have  been  employed  bj'  the  order  of  the  court  or  of  the  judge  thereof. 

§  220  (241). — The  court  may  require  the  defendant,  or  the  claimant  of  any 
.attached  i^roperty,  to  appear  before  it,  and  give  information,  on  oath,  concerning 
the  property;  and  if  it  appear  from  the  plaintiff's  affidavit,  or  the  return  of  an  order 
of  attachment,  that  no  property,  or  not  enough  to  satisfy  the  plaintiff's  claim,  is 
kno\vn  to  the  plaintiff  or  the  officer,  on  which  the  attachinent  can  be  executed,  the 
court  may  order  the  defendant  to  appear  before  it  and  give  information,  on  oath, 
respecting  his  property;  and  if  it  also  appear  from  the  affidavit,  that  a  person, 
other  than  the  defendant,  has  in  his  possession  property  of  the  defendant,  or  evi- 


KENTUCKY.  531 

dences  of  debt,  the  court  may  require  such  person  to  appear  before  it,  and  give 
information,  on  oath,  respecting  the  same;  and  the  coxu-t  may  enforce  those  ordera 
by  process  as  in  cases  of  contempt. 

PROCEEDINGS   UPON  ATTACHMENTg. 

§  221  (242). — If  the  defendant,  before  judgment,  cause  a  bond  to  be  executed  to 
the  plaintiff  by  one  or  more  sufhcient  sureties,  approved  by  the  court,  to  the  effect 
that  tlic  defendant  shall  perform  the  judgment  of  the  court,  the  attachment  shall 
be  discharged,  and  restitution  be  made  of  any  property  taken  under  it  or  of  the 
proceeds  thereof. 

§  222  (243). — The  bond  mentioned  in  the  last  section  may,  in  vacation,  be  exe- 
cuted in  the  presence  of  the  sheriff  having  the  order  of  attachment  in  his  hands,  or, 
after  the  return  of  the  order,  before  the  clerk,  with  the  same  effect  upon  the  attach- 
ment as  if  executed  in  court — the  sureties,  in  either  case,  to  be  approved  by  the 
oflBcer. 

§  223  (244). — The  garnishee  may  pay  the  money  owing  to  the  defendant  by  him, 
not  exceeding  the  plaintiff's  claim  and  costs,  to  the  sheriff  having  in  his  hands  the 
order  of  attachment,  or  into  the  court;  and  to  that  extent  he  shall  be  discharged 
from  lialsility  to  the  defendant.  He  shall  not  be  subjected  to  costs  beyond  those 
caused  by  his  resistance  of  the  claim  against  him;  and,  if  he  disclose  the  property 
of  the  defendant  in  his  hands,  or  the  true  sum  owing  by  him,  and  deliver  or  pay 
the  same  to  the  sheriff,  or  according  to  the  order  of  the  comi;,  he  shall  be  allowed 
his  costs. 

§  224  (245). — Each  garnishee  summoned  shall  appear.  The  appearance  may  be 
in  person;  or  by  the  affidavit  of  the  garnishee  filed  in  court  disclosing  truly  the 
sum  owing  by  him  to  the  defendant,  whether  due  or  not,  and  the  property  of  the 
defendant  in  the  possession  or  under  the  control  of  the  garnishee;  and,  in  the  case 
of  a  corporation,  any  shares  of  stocks  therein,  held  by  or  for  the  benefit  of  the 
defendant,  at  or  after  the  service  of  the  order  of  attachment. 

§  225  (24G). — If  a  garnishee,  or  officer  of  a  corporation  summoned  as  a  garnishee, 
appear  in  person,  he  may  be  examined  on  oath;  and  if  it  be  discovered  on  such  ex- 
amination that,  at  the  service  of  the  order  of  attachment  upon  him,  he  or  the  corpora- 
tion was  possessed  of  any  property  of  the  defendant,  or  was  indebted  to  him,  the 
court  may  order  the  deUvery  of  such  property,  and  the  payment,  or  secm-ity  for  the 
payment,  of  the  sum  owing  by  the  garnishee,  into  court,  or  to  such  person  as  it  may 
direct — who  shall  give  bond,  with  security,  for  the  same;  or  the  court  may  permit 
the  garnishee  to  retain  the  property  or  the  sum  owing,  upon  the  execution  of  a  bond, 
with  one  or  more  sufficient  sureties,  to  the  effect  that  the  sum  shall  be  i>aid,  or  the 
proi^erty  be  forthcoming,  as  the  court  may  direct.  Performance  of  such  bonds,  for 
the  forthcoming  of  property,  may  be  enforced  as  in  cases  of  contemfit:  upon  such 
bonds  for  payment  of  money,  execution  may  be  issued  as  upon  replevin  bonds. 

§  22G  (247). — If  such  garnishee,  or  officer,  make  default,  by  not  appearing,  the 
court  may,  on  the  motion  of  the  plaintiff,  compel  him  to  appear  in  person  for  ex- 
amina,tion,  bj'  process  as  in  cases  of  contempt;  or  it  may  hear  jjroof  of  any  debt 
owing  or  property  held  by  the  garnishee  to  or  for  the  defendant,  and  make  such 
order  in  relation  thereto,  as  if  what  is  so  proved  had  appeared  on  the  examination 
of  the  garnishee  or  officer. 

§  227  (248). — If  a  garnishee  fail  to  make  a  disclosure,  satisfactory  to  the  plaint- 
iff, the  latter  may  bring  an  action  against  him,  by  jietition  or  amended  petition,  in 
the  same  manner,  and  the  proceedings  therein  shall  be  the  same,  as  in  other 
actions;  and  the  plaintiff  may  procure  an  order  of  attachment  in  the  same  manner, 
and  the  proceedings  thereupon  shall  be  the  same,  as  is  hereinbefore  and  hereinafter 
authorized  concerning  attachments — except  that  the  plaintiff's  affidavit  shall  state, 
in  addition  to  the  facts  required  to  be  stated  in  section  19G,  the  sum  which  the  de- 
fendant o'\\'es  to  the  plaintiff's  debtor;  and  the  plaintiff  shall  not  be  entitled  to 
attach  for  or  recover  more  than  that  sum  and  costs,  nor  more  than  the  amount  of 
the  jilaintiff's  claim  against  his  debtor  and  costs. 

§  228  (240). — If  judgment  be  rendered  in  the  action  for  the  defendant,  or  if  the 
attachment  be  discharged — 

1.  The  property  attached,  or  its  proceeds,  shall  be  retimied  to  him. 

2.  The  proceedings  against  the  garnishee  shall  be  dismissed. 

§  220  (250). — If  judgment  be  rendered  for  the  plaintiff,  the  court  shall  apply  in 
satisfaction  thereof — 

1.  Moneys  arising  from  property  sold  pending  the  litigation. 

2.  Proceeds  of  the  debts  and  funds  attached  in  the  hands  of  the  garnishee. 


532  KEXTUCKY. 

If  these  be  not  sufficient  to  satisfy  the  plaintiff's  claim,  the  court  shall  order  a 
Bale,  by  the  sheriff,  of  any  other  attached  i^roperty  which  may  be  under  its  control, 
in  the  following  order: 

1.  Personal  property. 

2.  Real  property,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the  plaint- 
iff's claim. 

230  (251). — No  order  for  the  sale  of  real  property  seized  under  attachment  shall 
be  made  in  any  action  in  which  the  defendant  has  not  appeared,  or  been  actually 
summoned,  until  an  affidavit  of  the  plaintiff,  or  of  his  agent  or  attorney,  have  been 
filed,  to  the  effect  that  the  defendant  has  no  personal  property,  or  not  enough  to 
satisfy  the  claim  of  the  plaintiff,  in  this  state,  knowj;  to  the  affiant. 

§  2.31  (252). — Any  surplus  of  the  attached  property,  or  of  its  proceeds,  shall  be 
retm'ued  to  the  defendant. 

§  232  (254). — The  court  may,  by  summary  proceedings,  compel  the  delivery  to 
the  sheriff,  for  sale,  of  any  attached  property,  for  which  a  bond  may  have  been 
given;  or,  for  such  sums  of  money  as  may  be  due  upon  such  bonds,  execution  may 
issue  as  upon  replevin  bonds. 

§  233  (255). — The  court  may,  from  time  to  time,  make  and  enforce  proper  orders 
respecting  the  property,  sales,  and  the  confirmation  thereof;  and  the  application 
and  payment  of  the  moneys  collected. 

§  234  (256).— It  may  order  the  sheriff  to  repossess  himself,  for  the  purpose  of 
se'ling  it,  of  any  attached  property  which  may  have  passed  out  of  his  hand^  with- 
out having  been  sold  or  converted  into  money;  and  the  sheriff  shall,  under  such 
order,  have  the  same  power  to  take  the  property  as  upon  an  order  of  attachment. 

§  235  (257). — If  several  attachments  be  executed  on  the  same  property,  the 
court,  on  the  motion  of  any  one  of  the  attaching  plaintiffs,  may  order  a  reference 
to  a  commissioner,  to  ascertain  and  report  the  amounts  and  priorities  of  the  several 

attachments. 

§  236  (258). — The  defendant  may,  at  any  time  before  judgment,  after  reason- 
able notice  to  the  plaintiff,  move  the  court  for  additional  security  on  the  part  of 
the  plaintiff;  and  if,  on  such  motion,  the  court  be  satisfied  that  the  surety  in  the 
plaintiff's  bond  have  died  or  removed  from  the  state,  or  is  not  sufficient  for  the 
amount  thereof,  it  may  vacate  the  order  of  attachment  and  direct  restitution  of 
any  proj)erty  taken  under  it,  unless  in  a  reasonable  time,  to  be  fixed  by  the  court, 
sufficient  security  be  given  by  the  plaintiff. 

ATTACHMENTS  IN  CERTAIN   ACTIONS. 

§  237  (259). — ^Before  a  debt  or  liability,  upon  a  contract,  becomes  due  or  matures, 
an  equitable  action,  for  indemnity,  may  be  brought  by  a  creditor  against  his  debtor; 
by  a  surety  against  his  principal;  or  by  one  who  is  jointly  liable  with  another,  for 
such  debt  or  liability,  against  the  latter — 

1.  If  the  defendant  be  about  to  depart  from  this  state,  and,  with  intent  to  de- 
fraud his  creditors,  have  concealed,  or  removed  from  this  state,  his  property-,  or  so 
much  thereof  that  the  process  of  court,  after  judgment,  cannot  be  executed. 

2.  If  there  exist  against  the  defendant  any  of  the  grounds  for  an  attachment 
which  are  mentioned  in  subsections  3,  4,  5,  6,  7,  and  8,  of  section  194. 

§  238  (260).— In  such  action,  if  the  petition,  verified  by  the  oath  of  the  plaintiff, 
show  the  nature  and  amount  of  the  demand,  and  when  it  will  mature,  the  court  in 
which  the  action  is  pending,  or  any  circuit  judge,  or  the  presiding  judge  of  the 
county  court,  may  grant — 

1.  An  order  for  the  arrest  of  the  defendant,  if  the  petition  also  state  the  facts 
mentioned  in  subsection  1  of  section  237. 

2.  An  attachment  against  the  property  of  the  defendant,  if  the  jietition  also 
show  the  existence  of  any  of  the  grounds  specified  in  subsection  2  of  section  237. 

§  239  (261). — The  order  of  arrest,  or  attachment,  shall  specify  the  sum  for  which 
it  is  allowed,  not  exceeding  a  sum  sufficient  to  satisfy  the  plaintiff's-  claim  and  the 
probable  costs  of  the  action. 

§  240  (262). — Such  order  of  arrest,  or  attachment,  shall  not  be  issued  by  the 
clerk  until,  if  it  be  an  order  of  arrest,  bond  be  executed  pursuant  to  section  154; 
nor,  if  it  be  an  order  of  attachment,  until  bond  be  executed  pursuant  to  section  198. 

§  241  (263). — ^1.  The  provisions  of  chapter  1  of  title  viii,  subsequent  to  section 
154,  shall,  so  far  as  applicable,  regulate  arrests  authorized  by  this  aiticl©. 


KENTUCKY.  533 

2.  The  provisions  of  the  first  article  of  this  chapter  subsequent  to  section  198, 
shall,  so  far  as  applicable,  regulate  attachments  authorized  by  this  article. 

§  242. — 1.  Juds-ment  may  be  rendered,  in  an  action  brought  pursuant  to  section 
237,  concerning  tlae  alleged  liability  of  the  defendant,  though  it  may  not  have 
matured. 

2.  Unless  the  creditor  bring  the  action,  he  must  be  made  defendant,  but  shall 
not  be  liable  for  costs. 

§  243.  —If  such  action  be  brought  by  the  creditor,  and  judgment  be  rendered 
against  the  defendant,  it  shall  be,  that  he  pay  to  the  plaintiff  the  amount  of  the 
judgment;  or,  if  the  demand  have  not  matured,  that  he  pay  said  amount  at  the 
time  of  such  maturity:  and  the  court  shall  apply,  in  satisfaction  of  the  judgment, 
moneys  of  the  defendant  under  its  control,  though  the  demand  have  not  matured. 

§  244.— If  such  action  be  brought  by  a  surety  against  his  principal,  and  judg- 
ment be  rendered  against  such  defendant,  it  shall  be,  that  he  pay  to  the  creditor 
the  amount  of  the  judgment;  or,  if  the  demand  have  not  matured,  that  he  so  pay 
said  amount  at  the  time  of  said  maturity. 

§  245. — If  such  action  be  brought  by  one  who  is  jointly  liable  with  another, 
against  the  latter,  and  judgment  be  rendered  against  such  defendant,  it  shall  be, 
that  he  pay  to  the  creditor  so  much  of  his  demand  as  such  defendant  is  equitably 
liable  for,  as  between  him  and  the  plaintiff;  or,  if  the  demand  have  not  matured, 
that  he  pay  said  amount  at  the  time  of  said  maturity. 

§  246. — In  actions  mentioned  in  section  244,  or  section  245,  moneys  of  the  de- 
fendant under  control  of  the  coui-t  shall  be  applied  in  satisfaction  of  the  judgment 
when  the  demand  matures,  or,  with  the  creditor's  consent,  before  it  matures;  and, 
until  so  api>lied,  such  moneys,  and  property  of  the  defendant  attached  in  the  action, 
shall  be  under  the  control  of  the  court. 

§  247. — In  every  action  brought  pursuant  to  section  237 — 

1.  A  judgment  against  the  defendant  shall  include  a  judgment  for  costs  in  favor 
of  the  plaintiff. 

2.  Such  judgments  maybe  enforced  as  in  equitable  actions  generally,  exceijt 
that  executions  iipon  judgments  rendered  pursuant  to  section  244  or  section  245, 
shall  be  in  favor  of  the  plaintiff  for  the  benefit  of  the  creditor,  and  shall  be  so  in- 
dorsed by  the  clerk. 

3.  In  rendering  judgment  before  matm-ity  of  the  demand,  the  court  shall  make 
an  aliatement,  on  account  of  interest;  and  shall  make  the  judgment  bear  interest 
from  the  day  of  its  rendition  until  it  shall  be  satisfied,  accorvling  to  the  rate  of  such 
abatement. 

§  248. — No  judgment  shall  be  rendered  pursuant  to  section  245,  until  the  plaintiff 
shall  have  paid  into  court  money  enough  to  satisfy  the  residue  of  the  creditor's 
demand;  or  shall  have  filed  in  court  the  creditor's  receipt  therefor,  or  his  release  or 
assignment  to  the  plaintiff  of  his  right  to  the  demand,  or  to  said  residue. 

SPECIFIC  ATTACHMENTS. 

§  249  (273). — In  an  action  to  enforce  a  mortgage  of,  or  lien  upon,  personal  prop- 
erty; or,  for  the  recovery,  partition,  or  sale,  of  such  property;  or,  by  a  plaintiff 
having  a  future  estate  or  interest  therein  for  the  security  of  his  rights,  if  it  satis- 
factorily appear,  from  a  verified  petition,  or  from  affidavits,  or  the  proofs  in  the 
cause,  that  the  plaintiff  has  a  just  claim,  and  that  the  property  is  about  to  be  sold, 
concealed,  or  removed  from  the  state;  or  if  the  plaintiff  state  on  oath  that  he  has 
reasonable  cause  to  believe  and  does  believe  that,  unless  prevented  by  the  court, 
the  property  will  be  sold,  concealed,  or  removed  from  the  state,  an  attachment  may 
be  granted  against  the  i^roperty. 

230  (274).— In  an  action  by  a  vendor  of  property  fraudulently  purchased,  to 
vacate  the  contract  and  have  a  restoration  of  the  jiroperty  or  compensation  there- 
for, if  the  petition  show  such  fraudulent  purchase,  and  the  amount  of  the  plaintiff's 
claim,  and  be  verified  bj'  his  oath,  an  attachment  against  the  property  may  be 
granted. 

§  251  (275).— The  attachments  in  the  cases  mentioned  in  sections  249  and  250 
may  be  gi-anted  by  the  court  in  which  the  action  is  brought,  or  by  the  judge 
thereof,  or  any  circuit  judge,  or  the  ijresiding  judge  of  the  county  court,  upon  such 
terms  and  conditions  as  to  security,  on  the  part  of  the  plaintiff,  for  the  damages 
which  may  be  occasioned  by  them,  and  with  such  directions  as  to  the  di.spositiou 
to  be  made  of  the  attached  property,  as  may  be  just  and  proper  under  the  circum- 
stances of  each  case. 


534  KENTUCKY. 

§  252  (27C). — In  every  case,  tte  plaintiff  sliall  be  required  to  give  bond,  with 
sui-ety,  for  the  damages  to  the  defendant,  in  an  adequate  sum  to  be  specified  in  the 
order  prranting  the  attachment;  and,  if  proper,  the  court  or  judge  may  direct  that 
the  defendant,  or  person  in  possession  of  the  attached  property,  shall  he  permitted 
to  retain  it,  upon  giving  such  bond  with  surety,  and  for  such  simi,  as  the  court  or 
judge  may  prescribe. 

§  2D3  (277).— No  order  of  attachment  shall  be  issued  by  the  clerk  until  the  bond 
on  the  j:art  of  the  ijlaintiff,  required  by  the  order  of  the  court  or  judge,  be  executed 
in  his  office  by  one  or  more  sufficient  sureties  of  the  plaintiff. 

§  254  (278). — The  order  of  attachment  shall  describe  the  specific  property  against 
which  it  is  issued,  and  the  dkection  of  the  court  or  judge,  as  to  the  disposition  to 
be  made  of  the  attached  propertj',  shall  be  indorsed  upon  it.  It  shall  be  directed, 
ex  ecuted,  and  returned,  as  other  orders  of  a;ttachment. 

§  255  (279).— The  sheriff  shall  make  such  disposition  of  the  attached  property 
as  may  be  directed  by  the  court  cr  judge;  or,  if  there  be  no  direction  upon  the 
subject,  he  shall  safely  keep  the  property  subject  to  the  order  of  the  court. 

§  256  (281). — If,  after  an  order  of  attachment  against  specific  property  has  been 
placed  in  the  hands  cf  the  sheriff,  such  property  be  removed  from  the  county,  the 
sheriff  may  pursue  and  attach  it  in  another  county  within  twenty-four  hours  after 
such  removal. 

§  257  (282).— If  it  appear  from  the  return  of  the  sheriff,  or  the  affida-vat  of  the 

plaintiff,  that  any  specific  property,  against  which  an  order  of  attachment  is  issued, 

■  has  been  concealed  or  removed  by  the  defendant,  the  com-t  may  require  him  to 

attend  and  be  examined  on  oath  respecting  such  property,  and  may  enforce  its 

orders  in  this  respect  as  in  cases  of  contempt. 

§  258  (283,  284). — The  provisions  of  the  first  article  of  this  chapter,  not  incon- 
sistent with,  nor  inapplicable  to,  the  foregoing  sections  of  this  article,  shall  regu- 
late the  proceedings  in  cases  of  attachmerits  against  specific  property. 

DISCHAEGE  AND  EErN-STATEMEXT  OF  ATTACHMENTS. 

§  259  (285). — An  attachment  obtained  at  the  commencement  of  an  action  shall 
be  sustained  or  discharged  when  judgment  is  rendered  in  the  action,  unless,  for 
si;fficient  cause,  the  court  extend  the  time  of  deciding  upon  it.  An  attachment 
olDtained  after  the  commencement  of  an  action  shall  not  be  sustained  until  the 
defendant  has  had  the  time  for  controverting  it  provided  in  this  chapter. 

§  2C0  (28G). — If  judgment  be  rendered  in  favor  of  the  defendant  the  attachment 
shall  be  discharged. 

§  201  (287). — If  judgment  be  rendered  in  favor  of  the  plaintiff,  and  no  answer 
nor  affidavit  of  the  defendant  be  filed,  denying  the  statements  of  the  affidavit  upon 
which  the  attachment  was  issued,  nor  motion  made  to  discharge  it,  the  court  shall 
sustain  the  attachment. 

§  262  (288). — Upon  an  attachment  being  sustained,  the  property  attached,  or  its 
proceeds,  or  the  securities  taken  upon  the  attachment,  shall,  by  appropriate  orders, 
be  applied  in  satisfaction  of  the  judgment. 

§  263  (289). — The  defendant  may  file  his  affidavit  denying  all  or  any  of  the 
material  statements  of  the  affidavit  on  which  the  attachment  is  issued;  and,  there- 
upon, the  attachment  shall  be  considered  as  controverted,  and  the  affidavits  of  the 
plaintiff  and  defendant  shall  be  regarded  as  the  pleadings  concerning  the  attach- 
ment, and  have  no  other  effect.  If  the  attachment  was  obtained  at  the  commence- 
ment of  the  action,  the  defendant  may  file  his  affidavit  at  such  time  after  the  levy 
of  the  attachment  as  is  given  by  this  code  for  filing  his  defense  after  the  service 
of  the  summons — which  period  may  be  extended  by  the  coiort  for  sufficient  cause. 

§  264  (290). — The  trial  of  the  attachment  shaU  be  by  the  court;  and  the  wit- 
nesses shall  be  orally  examined,  except  in  cases  wherein  depositions  might  be  read 
in  an  ordinary  action. 

§  265  (291). — At  any  time  before  the  attachment  is  sustained,  the  defendant, 
upon  reasonable  notice  to  the  jilaintiff  or  his  attorney,  may  move  for  its  discharge; 
and  the  hearing  of  such  motion  may  be  postponed  by  the  court,  upon  sufficient 
cause,  from  time  to  time;  and  upon  the  hearing,  if  the  court  be  of  opinion  that  the 
attachment  was  obtained  without  sufficient  cause,  or  that  the  grounds  of  thd 
attachment,  being  controverted,  are  not  sustained,  it  shall  be  discharged. 


KENTUCKY.  535 

§  266  (292). — An  order  for  the  discharge  of  an  attachment,  made  at  or  after  the 
rendition  of  judgment  in  the  action,  shall  be  final;  and  cannot  he  reinstated  as  ia 
authorized  by  section  270;  but  shall  be  the  subject  of  appeal,  if  the  amount  in  con- 
troversy be  such  as  to  authorize  an  aiipcal.  An  order  sustaining  an  attachment 
shall,  in  like  manner,  on  the  rendition  of  judgment  in  the  action,  be  the  subject 
of  appeal. 

§  267  (293). — The  reinstatement  of  attachments,  as  provided  in  section  270,  shall 
only  be  binding  on  the  inferior  court  until  judgment;  and  when  judgment  is  ren- 
dered in  the  action  the  inferior  court  shall  make  a  disposition  of  the  motion  to 
discharge — which  shall,  in  like  manner,  be  final. 

§  268  (294). — 1.  The  defendant,  on  reasonable  notice  to  the  plaintiff,  may,  at 
any  time  before  the  term  next  after  the  levy  of  the  attachment,  move  the  judge 
of  the  court,  in  vacation,  to  discharge  the  attachment,  on  the  ground  of  its  having 
been  issued  contrary  to  the  provisions  of  article  one  of  this  chapter;  and  the  judge, 
on  an  inspection  of  the  piapers  in  the  action,  or  of  authenticated  copies  of  them, 
shall  have  the  same  power  of  discharging  the  attachment,  by  his  ^\Titten  order, 
filed  by  the  clerk,  as  he  woiild  have  in  coiu't;  and  shall  have  like  i^ower  to  permit 
amendments  by  the  plaintiff. 

2.  A  plaintiff  may,  by  an  amended  affidavit,  conforming  to  section  196,  cure  a 
defect  in  the  affidavit  upon  which  he  obtained  an  attachment;  or  may  state  a 
ground  of  attachment  not  mentioned  in  his  first  affidavit,  whether  it  may  have 
existed  when  he  filed  the  first  affidavit,  or  may  have  arisen  afterward;  and  may 
thus  acquire  a  lien  upon  the  attached  property,  if  the  proceedings  conform  to  law 
in  other  respects:  but  such  lien  shall  not  affect  a  LonaJ'de  right  to,  or  lien  i^revi- 
ously  acquired  upon,  the  property,  by  attachment  or  otherwise. 

§  269  (295). — A  plaintiff  who  desires  a  reinstatement  of  an  attachment  may  have 
an  entry  made  upon  the  record,  of  leave  to  apply  therefor  within  a  reasonable 
time,  not  exceeding  twenty  days;  whereupon,  the  order  of  discharge  shall  be  made, 
to  take  effect  at  the  end  of  the  period  so  limited,  unless  the  attachment  be  rein- 
stated in  the  meantime. 

§  270  (296). — A  judge  of  the  covu-t  of  appeals,  if  the  plaintiff  have  secured  the 
right  to  apply  for  the  reinstatement  of  an  attachment,  may,  upon  an  inspection  of 
a  copy  of  the  record,  including  the  evidence  read  upon  the  motion  to  discharge, 
reinstate  the  attachment;  and,  if  the  order  of  reinstatement  be  filed  in  the  clerk's 
office  of  the  court  in  which  the  action  is  piending,  M^ithm  the  time  limited  as  pro- 
vided in  section  269,  the  execution  of  the  order  of  attachment  shall  iiroceed;  other- 
wise, it  shall  stand  discharged,  and  restitution  shall  be  made  of  any  projierty 
taken  under  it. 


Ko  lien  on  constructive  service  except  by  attachment,  etc.— Sec  418. 
Equitable  action  on  judgments  enforced  by — Sees.  439-443. 
May  be  issued  on  Sunday — Sees.  664,  665. 
Date  of  reception  of  writ  to  be  indorsed — Sec.  674. 
Two  justices  may  grant  in  absence  of  judge — Sec.  689. 
Action  for  \^Tongful  attachment — General  Stats.  1883,  sec.  3. 
For  rent — Sees.  5-26,  p.  602;  for  taxes,  sees.  1-7,  p.  736. 

Exemptions— Stats.  1884,  p.  75;  and  1880,  p.  172,  sees.  142-145;  Gen.  Stats-,  p. 
431,  sees.  7-16. 

Mechanics'  liens — Stats.  March  20,  1876. 

Against  vessels — Gen.  Stats.,  p.  984-5,  sees..  1-6;  and  Stats.  1880,  p  175. 


536  LOUISIAXA. 

LOUISIANA. 

[VooEHiEs'  Code  of  1875.1 


OF  ATTACHMENTS   IN   THE  HANDS   OF  THIRD   PERSONS. 

Art.  239. — An  attacLrcent  in  the  hands  of  third  persons,  is  a  mandate  •which 
a  creditor  obtains  from  a  competent  judge,  commanding  the  seizure  of  any  prop- 
erty, credit,  cr  right,  belonging  to  his  debtor,  in  whatever  hands  they  may  be 
found,  to  satisfy  the  demand  which  he  iatends  to  bring  against  him. 

Akt.  2-10. — A  creditor  may  obtain  such  attachment  of  the  jDroperty  of  his 
debtor,  in  the  follo-wing  cases: 

1.  When  such  a  debtor  is  about  leaving  permanently  the  state,  without  there 
being  a  pocsibility,  in  the  ordinary  course  of  judicial  proceedings,  of  obtaining  or 
executing  judgment  against  him  previous  to  his  departure,  or  M'hen  such  debtor 
has  ah'cady  left  the  state  permanently. 

2.  When  such  debtor  resides  out  of  the  state. 

3.  V/hen  he  conceals  himself  to  avoid  being  cited  and  forced  to  answer  to  the 
suit  intended  to  be  brought  against  him. 

4.  Vv  hen  he  has  mortgaged,  assigned  or  disposed  of,  or  is  about  to  mortgage, 
assign  or  dispose  of  his  jiroperty,  rights  or  credits,  or  some  parts  thereof,  with 
intent  to  defraud  his  creditors  or  give  an  imfair  preference  to  some  of  them. 

5.  When  he  has  converted,  cr  is  about  to  convert  his  property  into  money  or 
evidences  of  debt,  with  intent  to  place  it  beyond  the  reach  of  his  creditors. 

Aet.  241.— a  creditor  may,  in  like  manner,  obtain  a  mandate  of  seizure 
against  all  species  of  property  belonging  to  his  debtor,  real  or  personal,  whether 
it  consists  c;f  credits  cr  rights  of  action,  and  whether  such  property  be  in  the  debt- 
or's possession  or  in  that  cf  third  i;ersons,  by  whatever  title  the  same  be  held, 
either  as  deposit  or  placed  under  their  custody. 

Ar.T.  242. — The  property  of  a  debtor  may  be  attached  in  the  hands  of  third 
persons  bj-  his  creditor  in  order  to  seciire  the  pajTnent  of  a  debt,  whatever  may 
be  its  nature,  whether  the  amount  be  liquidated  or  not,  jirovided  the  creditor,  hi 
agent  or  attorney  in  fact,  who  prays  for  the  attachment,  state  expressly  and  posi- 
tively the  amount  which  he  claims. 

Aet.  243. — A  creditor  wishing  to  have  the  property  of  his  debtor  attached, 
must  demand  it  in  a  petition  presented  to  a  competent  judge,  and  to  obtain  the 
issuance  of  .such  attachment  it  shall  be  sufficient  for  the  creditor  to  swear  to  the 
existence  of  the  debt  demanded  by  him,  and  that  he  verUy  believes  that  the  debtor 
has  left  the  state  permanently,  or  is  on  the  eve  of  leaving  the  state  permanently, 
cr  that  he  resides  out  of  the  state,  cr  conceals  himself,  so  that  citation  can  not  be 
served  on  him,  or  that  he  has  mortgaged,  assigned  or  disposed  of,  or  is  about  to 
mortgage,  assign  or  dispose  of  his  property,  rights  or  credits,  or  some  part  thereof, 
v.-ith  intent  to  defraud  his  creditors  or  give  an  unfair  preference  to  some  of  them, 
or  that  he  has  converted  or  is  about  to  convert  his  property  into  money  or  evidences 
of  debt  with  intent  to  place  it  beyond  the  reach  of  his  creditors. 

Aet.  244. — That  in  cases  where  the  debt  or  obligation  is  not  yet  due,  such  at- 
tachment may  be  granted,  on  the  oath  of  the  creditor,  or  of  his  agent  or  attorney 
in  fact,  if  such  creditor  be  absent;  and  it  shall  be  lawful  for  any  judge  of  compe- 
tent jurisdiction  to  order  a  %\Tit  of  attachment  to  issue,  whenever  the  said  judge 
shall  be  satisfied  by  the  oath  of  the  creditor  or  his  agent  or  attorney,  of  the  exist- 
ence cf  caid  debt,  and  upon  the  said  creditor,  his  agent  or  attorney  in  fact,  taking 
oath  to  the  requisites  contained  in  any  one  of  the  numbers  one,  two,  three,  four 
or  tlve  of  article  two  hundred  and  forty,  or  swears  that  said  debtor  is  about  to 
remove  his  property  out  of  the  state  before  said  debt  becomes  diie;  and  it  chaU  be 
sufficient  for  the  oath  required  to  be  taken  by  the  agent  or  attorney  in  fact  to  be 
to  the  best  of  his  knowledge  and  belief. 

Aet.  245. — A  creditor,  his  agent  or  attorney  in  fact,  praying  such  attachment, 
must  berJdes,  annex  to  his  petition  his  obligation  in  favor  of  the  clerk  i 'f  the  court  be- 
fore which  the  writ  issues  for  a  sum  equal  to  that  which  he  claims,  vrith  the  surety 


LOUSIANA.  537 

of  one  poocl  and  solvent  person  residing  wdthin  the  jurisdiction  of  tlie  court  to  whicli 
the  petition  is  presented,  as  a  security  for  the  pajTnont  of  sucli  damages  as  such 
defendant  may  recover  against  him  in  case  it  should  be  decided  that  the  attach- 
ment was  wrongfully  obtained.     [Amended  Stats.  1880,  p.  21.] 

Art.  246. — If  a  creditor  know  or  suspect  that  a  third  person  has  in  his  posses- 
6ession  property  belonging  to  his  debtor,  or  that  he  is  indebted  to  such  debtor,  he 
may  make  .such  a  person  a  party  to  the  suit,  by  having  him  cited  to  declare  on  oath 
what  property  belonging  to  the  defendant  he  has  in  his  possession  or  in  what  sum 
he  is  indebted  to  such  defendant;  even  when  the  term  of  payment  has  not  yet 
arrived. 

The  person  thus  made  a  party  to  the  suit  is  termed  the  garnishee. 

And  whenever  a  party  plaintiff  in  a  cause  has  ai^plied  for  a  writ  of  fieri  facias 
against  the  defendant,  and  has  reason  to  believe  that  a  third  person  has  jjroperty 
or  effects  in  his  possession,  or  under  his  control,  belonging  to  the  defendant,  or  is 
indebted  to  him,  lie  may  cause  such  third  person  to  be  cited  to  answer  under  oath, 
such  interrogations  as  may  be  propounded  to  him  touching  f:aid  property  and 
effects,  or  such  indebtedness,  in  the  same  manner  and  with  the  same  regulations 
as  are  provided  in  relation  to  garnishees  in  cases  of  attaclinicnt.  Such  third 
person  shall  thereupon  be  bound  to  answer  in  the  same  manner,  and  shall  be 
liable  in  the  same  manner  for  his  neglect  or  refusal  to  answer,  and  Ids  an- 
swers may  be  disproved  in  the  same  manner  as  those  of  the  garnishee.  In  case 
such  thhd  person  shall  confess  in  his  answers  that  he  has  property  or  effects  in  his 
possession,  or  imder  his  control,  belonging  to  the  defendant,  cr  is  indebted  to  him 
in  any  sum  of  money,  the  court  shall  order  him  forthwith  to  deliver  up  said  prop- 
erty, to  pay  such  sum  (if  the  same  be  due,  and  if  not,  when  the  same  shall  be 
due),  to  the  sheriff,  and  a  copy  of  said  order  with  a  receipt  of  the  sheriff  indorsed 
thereon,  shall  be  delivered  to  the  said  thh-d  person,  and  shall  be  decreed  equivalent 
to  a  receipt  from  the  debtor  himself. 

The  property  and  e&'ects  in  the  possession  of  a  third  person,  belonging  to  the 
defendant,  or  debts  due  by  him  to  such  defendant,  shall  be  decreed  to  be  levied  as 
by  the  sheriff,  from  the  date  of  the  service  of  the  interrogatories  on  such  person. 

And  no  seizure  shall  bind  any  property,  money  or  effects,  rights  or  claims  in 
the  hand  of  a  garnishee,  either  under  i^rocess  of  attachment,  or  fieri  facias,  unless 
service  of  the  interrogatories  has  been  personal  upon  such  garnishee. 

Art.  247. — A  creditor  may  likewise  annex  to  his  petition  interrogatories  on  facts 
and  articles,  to  be  answered  categorically  under  oath  by  such  garnishee,  as  to  the 
natm-e  of  the  property  belonging  to  the  defendant  w"hich  may  be  in  his  possession, 
and  as  to  the  amount  of  the  sums  for  which  he  may  be  indebted  to  him. 

And  in  case  a  garnishee  acknjwledges  himself  indebted  to  the  defendant,  it 
shall  be  lawful  for  the  judge  to  order  said  garnishee  to  be  held  to  bail  in  the  same 
case  as  if  he  was  the  original  defendant,  unless  he  prefers  depositing  the  money  in 
court. 

Art.  248. — If  a  creditor  who  has  filed  interrogatories  on  facts  and  articles  to  be 
answered  by  a  garnishee,  declare  upon  oath  that  he  verily  believes  that  such  gar- 
nishee has  in  hands,  propei  ty  or  effects  belonging  to  his  debtor,  or  is  indebted  to 
the  defendant  in  any  sum  of  money,  whether  the  same  be  due  or  not,  and  that 
such  garnishee  is  about  to  depart  from  the  state  without  having  filed  his  answers 
to  such  interrogatories,  such  garnishee  may  be  arrested  and  confined  imtil  he  gives 
good  and  sufficient  security,  in  a  sum  exceeding  by  one-half  the  amount  claimed 
by  the  plaintiff,  that  he  shall  appear  whenever  cited  so  to  do  before  any  judge  or 
justice  of  the  peace,  to  answer  the  interrogatories  put  to  him,  and  that  he  shall 
answer  them  in  the  manner  provided  in  the  preceding  article. 

Art.  249. — The  garnishee  may,  nevertheless,  be  discharged,  without  being 
obliged  to  give  security,  if  he  prove  to  the  satisfaction  of  the  court  which  had 
given  the  order  of  arrest,  after  notice  in  writing  having  been  served  on  the  defend- 
ant of  his  intention  of  making  such  i^iroof,  that  he  has  no  intention  of  leaving  the 
state;  or,  if  he  immediately,  in  the  jDresence  of  the  court,  answer  in  writing  and 
pertinently  the  interrogatories  i^ut  to  him,  and  file  such  answer  in  the  office  of  the 
clerk  of  the  com:t. 

Art.  250. — A  garnishee  may  be  made  party  to  a  suit,  and  be  cited  to  answer 
interrogatories  on  facts  and  articles,  either  by  joraying  to  that  effect  in  the  original 
petition,  or  by  a  supplemental  petition  filed  at  any  stage  of  the  suit  previous  to  ren- 
dering the  judgment. 

Art.  2-j1. — When  an  order  to  attach  property  in  the  hands  of  a  third  person 
has  been  given  by  a  court,  the  clerk  of  such  court  shall  deliver  or  send  to  the 
fiheriff  a  copy  of  such  order  as  well  as  of  the  petition,  together  with  a  citation  to 


538  LOUISIANA. 

the  person  made  party  to  tlie  suit  to  answer  sucli  petition  ■within  the  usual  delay 
granted  in  ordinary  cases. 

Art.  252.— If  there  be  a  garnishee  made  party  to  the  suit,  the  clerk  must  de- 
liver or  send  to  the  sheriff  a  copy  of  the  petition  and  of  the  interrogatories 
annexed  to  it,  if  there  be  such,  with  a  sxunmons  directed  to  such  garnishee  to  answer 
the  same  within  the  delay  given  in  ordinary  suits. 

Art.  253. — The  sheriff  must  serve  such  citation; 

1.  On  the  person  of  the  defendant,  or  at  his  domicile  if  he  has  one  in  the  place, 
or  if  he  be  about  to  leave  the  state; 

2.  At  the  place  where  the  defendant  has  resided  last,  if  he  had  a  domicUe  in  the 
place,  and  conceal  himself  to  avoid  being  cited. 

Art.  254. — If,  on  the  contrary,  the  defendant  has  no  known  place  of  residence, 
conceal  his  person,  be  absent  or  reside  out  of  the  state,  in  such  case  the  sheriff 
shall  serve  the  attachment  and  citation  by  affixing  copies  of  the  same  on  the  door 
of  the  room  where  the  court  in  which  the  siut  is  pending  is  held. 

Art.  255. — In  the  latter  case  the  sheriff  must  keep  the  copy  of  the  petition,  in 
order  to  deliver  the  same  to  such  party  should  he  appear,  or  to  the  advocate 
appointed  to  defend  him,  in  his  absence. 

Art.  256. — The  sheriff,  as  soon  as  he  shall  have  served  the  copy  of  the  petition, 
in  the  manner  prescribed  in  the  preceding  articles,  and  notified  the  garnishee  of  the 
same  in  the  form  required  to  be  observed  as  relates  to  garnishees,  if  there  be  such 
made  party  to  the  suit,  must  seize  and  detain  so  much  of  whatever  property  the 
debtor  may  possess  within  the  parish  over  which  his  powers  extend,  whether  it 
consists  of  goods,  effects,  rights,  credits,  or  right  of  actions,  as  may  be  equal  in 
value  to  the  amount  claimed  in  the  suit;  and  he  mxist  immediately  after  deliver 
or  send  to  the  clerk  of  the  court  by  which  the  attachment  was  granted,  his  return 
in  writing,  stating  the  manner  in  which  he  has  executed  the  same. 

Art.  257. — The  sheriff  must  take  charge  and  keep  possession  of  all  the  goods  and 
effects  which  he  may  have  attached,  with  the  exception  of  such  sum  which  may  be 
due  by  the  garnishee,  and  he  shall  make,  in  the  presence  of  two  witnesses,  an  exact 
and  miaute  inventory  of  the  same,  which  he  shall  be  bound  to  deliver  or  send,  an- 
nexed to  his  return,  to  the  office  of  the  clerk  of  the  court  whose  mandate  he  has 
executed. 

Art.  258. — If  the  defendant  thus  made  a  party  to  a  suit  appear,  after  having 
been  served  with  the  citation,  or  prove  in  a  summary  way,  after  having  given  due 
notice  in  writing  to  the  adverse  party,  that  the  allegations  on  which  the  order  for 
attachment  had  been  obtained  were  false,  such  attachment  shall  be  dissolved,  and 
the  party  will  be  allowed  to  proceed  in  his  defense  as  in  ordinary  suits. 

Art.  259. — The  defendant,  if  he  appear  either  in  person  or  by  his  advocate, 
may,  moreover,  in  every  stage  of  the  suit,  have  the  property  attached  released  by 
delivering  to  the  sheriff  his  obligation  for  the  sum  exceeding  by  one  half  the  value 
of  the  i^roperty  attached,  with  the  surety  of  a  good  and  solvent  person  residing 
within  the  jurisdiction  of  the  court  where  the  action  was  brought,  that  he  will 
satisfy  such  judgment,  to  the  value  of  the  property  attached,  as  may  be  rendered 
against  him  in  the  suit  pending. 

\Yhen  the  defendant  has  given  such  obligation  with  security,  the  sheriff  shall 
be  bound  to  return  the  bond  so  taken  by  him  into  court  in  the  same  manner  as  is 
provided  for  bail  bonds;  and  the  plaintiff  shall  have  the  same  right  and  same  time 
to  object  to  the  insufficiency  of  the  security  on  such  bond  as  to  the  secm-ity  on  bail 
i)onds;  and  in  case  the  securitj'  on  said  bond  should  be  declared  insufficient,  the 
sheriff  shall  be  liable  as  surety  on  the  said  bond,  and  the  said  act  of  surety  shall 
be  assigned  by  the  sheriff  to  the  plaintiff  in  same  manner  as  bail  bonds. 

And  when  the  defendant  fails  to  satisfy  the  judgment  rendered  against  him, 
the  plaintiff  may  on  return  of  the  sheriff  that  no  property  has  been  found,  and  on 
exhibiting  to  the  court  said  obligation  duly  transferred  to  him,  obtain  judgment 
against  the  siu-ety  on  said  obligations,  upon  motion,  after  ten  days'  previous  notice 
to  said  surety,  which  motion  shall  be  tried  summarily  and  without  the  intervention 
of  a  jury,  unless  the  said  surety  shall  allege  under  oath,  that  the  signature  to  the 
bond  purporting  to  be  his,  is  not  genuine,  or  that  judgment  has  been  satisfied. 

Art.  260. — If,  on  the  contrary,  the  party  fail  to  appear,  either  in  person  or  by 
his  attorney,  the  coiu-t  shall  appoint  an  advocate  to  represent  him  and  defend  the 
suit,  and  a  reasonable  delay  shall  be  given  to  such  advocate  to  enable  him  to  com- 
municate -nith  the  party  he  represents,  in  order  to  obtain  the  information  neces- 
sary to  defend  the  suit. 


h 


LOUISIANA.  539 

Art.  261. — If  the  property  attached  and  whicli  has  been  seized,  be  of  a  perish- 
able nature,  and  subject  to  be  lost  or  deteriorated  dui'ing  the  pendency  of  the  suit, 
the  court  may,  at  the  request  of  the  plaintiff,  order  the  sale  of  such  property  at 

Eublic  auction,  after  the  usual  advertisement,  and  after  the  same  has  been  appraised 
y  two  experts  appointed  for  that  pui-pose,  in  order  that  the  proceeds  of  such  sale 
may  remain  in  deposit  in  the  hands  of  the  sheriff  until  the  definitive  decision  of 
the  suit. 

Art.  2C2. — The  garnishee  who  has  been  cited  in  a  suit,  must  put  in  his  answer 
within  the  usual  delay,  declaring  in  the  same,  fau'ly  and  ti'uly,  what  property  Ijc- 
longing  to  the  defendant  he  has  in  his  possession,  by  whatever  title  he  may  f)os- 
sess  the  same,  as  well  as  what  sums  he  may  owe  to  such  defendant,  whether  the 
same  be  due  or  not  yet  due,  and  if  interrogated  on  facts  and  articles,  he  must 
answer  under  oath,  clearly  and  categorically,  each  question  put  to  him  touching 
such  matter. 

Art.  263. — If  the  garnishee,  to  whom  interrogatories  have  been  put,  refuse  or 
neglect  to  answer  the  same  under  oath  in  the  delay  of  the  law,  such  refusal  or 
neglect  shall  be  considered  as  a  confession  of  his  having  in  his  hands  property 
belonging  to  the  debtor,  sufncient  to  satisfy  the  demand  made  against  such  debtor, 
and  judgment  shall  be  rendered  against  him  for  the  amount  claimed  by  the  defend- 
ant, with  interest  and  costs. 

Art.  2G4. — Although  the  answer  of  the  garnishee  to  the  question  put  to  him, 
be  made  under  oath,  the  plaintiff  may,  nevertheless,  show  the  same  to  be  false, 
either  by  positive  written  proof,  or  by  the  oath  of  two  witnesses  worthy  of 
belief,  in  the  same  manner  as  when  interrogatories  on  facts  and  articles  have  been 

Eut  to  a  party  in  a  suit;  and  if  it  be  proved  by  such  evidence  that  tlie  garnishee 
as  in  his  hands  property  or  effects  belonging  to  the  party  against  whose  property 
the  attachment  has  been  granted,  or  that  he  be  indebted  to  him  in  any  amount, 
such  property  and  effects,  as  well  as  such  sum  as  may  be  due  by  him,  shall  be 
subject  to  satisfy  such  judgment  as  may  be  rendered  against  the  defendant. 

Art.  2G5.— In  suits  where  attachment  is  demanded  after  answer  fded,  or  if  the 
defendant  has  failed  to  answer,  the  plaintiff  must  proceed  in  the  ordinary  form  to 
obtain  judgment,  and  on  execution  of  the  same,  have  so  much  of  the  property 
attached  and  sold  as  will  suffice  to  satisfy  the  judgment. 

Art.  26G. — If  the  debtor  whose  property  has  been  attached  has  filed  his  answer? 
or  has  given  instruction  to  the  advocate  appointed  by  the  court  to  defend  him,  the 
act  of  surety  given  by  the  plaintiff  shall  be  canceled  as  soon  as  judgment  shall 
have  been  rendered  in  favor  of  such  plaintiff. 

But  if  the  residence  of  the  debtor  whose  property  has  been  attached  be  un- 
known, and  the  advocate  appointed  to  defend  him  has  been  unable  to  communicate 
with  him,  the  act  of  surety  so  given  by  the  jdaintiff  shall  continue  in  full  force  one 
whole  year  after  the  date  of  the  judgment  given  in  favor  of  the  plaintiff,  in  order 
to  secure  the  recourse  which  the  debtor  may  have,  as  provided  in  the  following 
article. 

Art.  2G7. — The  absent  debtor,  against  whom  judgment  has  been  so  rendered, 
may,  within  two  years  after  such  judgment,  obtain  the  reversal  of  the  same,  if  he 
prove  that  the  distance  at  which  he  lived  from  the  place  where  the  attachment 
was  obtained,  has  prevented  his  being  appraised  of  the  proceedings  had  against 
him,  and  that  the  plaintiff  has  availed  himself  of  his  absence  to  obtain  paA'ment 
of  a  debt  either  already  paid  in  totality,  or  partly  discharged,  or  which  did  not 
exist. 

Art.  2G8. — In  case  such  evidence  be  shown  by  the  party  whose  property  has 
been  attached,  judg-ment  shall  be  given  against  the  plaintiff  in  the  first  suit,  not 
only  for  such  amount  as  he  may  have  recovered  above  the  sum  which  was  really 
due  to  him,  but  also  for  such  damages  as  may  have  been  sustained  by  the  defend- 
ant; but  as  relates  to  the  security,  such  action,  if  brought  against  him,  must  be 
instituted  within  the  year  following  the  judgment  wrongfully  obtained. 


Twenty  days  allowed  to  plaintiff  to  disprove  or  traverse  the  answers  of  gar- 
nishee— Stats.  1877,  p.  45. 

Exemptions — Arts.  644,  645. 

Before  justices  of  the  peace— Sees.  1116,  1123,  1126,  1127,  Stats.  1882,  p.  42, 

Intervention  in  attachment — Stats.  1870,  p.  92. 

Professional  services — Arts.  284-293. 


540  MAINE, 


MAINE. 

[Revised  Statutes,  1884.] 


CHAPTER  81. 

ATTACHMENT  OF  PERSONAL  PROPERTY. 

§24. — An  goods  and  chattels  may  be  attached  and  held  as  security  to  satisfy 
the  judgment  for  damages  and  ccsts  which  the  plaintiff  may  recover,  except  such 
as,  from  their  nature  and  situation,  have  been  considered  as  exempt  from  attach- 
tnent  according  to  the  principles  cf  the  common  law  as  adopted  and  practiced  in 
the  state,  and  such  as  are  hereafter  mentioned.  Such  personal  property  may  be 
attached  on  writs  issued  by  a  trial  justice,  or  judge  of  a  police  or  municipal  court 
in  any  coiuity,  when  directed  to  the  proper  officer. 

§  25. — When  hay  in  a  barn,  horses,  or  neat  cattle  are  attached,  and  are  suffered 
to  remain  by  permission  of  the  officer,  in  the  defendant's  possession  on  security 
given  for  their  safe  keeping  and  delivery  to  the  officer,  they  are  not  subject  to  a 
second  attachment  to  the  prejudice  of  the  first. 

§  26. — When  any  personal  property  is  attached,  which  by  reason  of  its  bulk  or 
other  special  cause  cannot  be  immediately  removed,  the  officer  may,  within  five 
days  thereafter,  file  in  the  office  of  the  clerk  of  the  town,  in  which  the  attachment 
is  made,  an  attested  copy  of  so  much  of  his  retm-n  on  the  Vv'rit,  as  relates  to  the 
attachment,  with  the  value  of  the  defendant's  property  which  he  is  thereby  com- 
manded- to  attach,  the  names  cf  the  parties,  the  date  of  the  writ,  and  the  court  to 
which  it  is  returnable;  and  such  attachment  is  as  effectual  and  valid,  as  if  the  prop- 
erty had  remained  in  his  possession  and  custody.  The  clerk  sh.all  receive  the  copy, 
noting  thereon  the  time,  enter  it  in  a  suitable  book,  and  keep  it  on  file  for  the  in- 
spection of  those  interested  therein,  for  which  he  is  entitled  to  ten  cents.  When 
the  attachment  is  made  in  an  uniucorjorated  place,  such  copy  .shall  be  filed  and 
recorded  in  the  ofiice  of  the  clerk  of  the  oldest  adjoining  town  in  the  county. 

§  27. — When  the  share  or  interest  of  any  person  in  an  incorporated  company  is  at- 
tached on  mesne  process,  an  attested  copy  cf  the  writ  with  a  notice  thereon  of  the 
attachment,  signed  by  the  of^cer,  .'^hall  be  left  with  the  clerk,  cashier  or  treasurer  of 
the  company;  and  such  attachment  is  a  lien  on  such  share  or  interest,  and  on  all  ac- 
cruing dividends;  and  if  the  officer  having  the  writ  exhibits  it  to  the  cfiiccr  of  the 
company  having  custody  of  the  accoimt  of  shares  or  interest  of  the  stockholders, 
and  recaiests  a  certificate  of  the  number  held  by  the  defendant,  and  such  company 
officer  unreasonably  refuses  to  give  it,  or  willfully  gives  him  a  false  certificate 
thereof,  he  shall  pay  double  the  damages  occasioned  bj'  such  refusal  or  neglect;  to 
be  recovered  against  him  in  an  action  on  the  case  by  the  creditor. 

§  28. — The  franchise  and  all  right  to  demand  and  take  toll,  and  all  ether  jirop- 
erty  of  a  corporation,  may  be  attached  on  mesne  process,  and  the  attaching  officer 
shall  leave  an  attested  copy  of  the  writ  with  a  notice  of  the  attachmtnt  thereon, 
signed  by  him,  with  the  clerk,  treasurer,  or  some  ofiicer  or  member  of  the  corpora- 
tion, as  provided  in  section  nineteen. 

§  29.  — Diff'erent  attachments  in  one  or  more  counties  may  be  made  successively 
upon  the  same  writ,  and  by  different  officers,  before  service  of  the  summons  upon 
the  person  whose  property  is  attached;  but  none  after  such  service.  Personal 
propei-ty  attached  by  a  coroner  may  be  again  attached  by  a  sheriff,  deputy  sheriff, 
or  constable,  subject  to  the  former  attachment,  by  giving  notice  thereof  tothe 
coroner  and  furnishing  him  with  a  copy  of  the  precept  within  a  reasonable  time, 
and  so  property  attached  by  the  last-named  officers  may  be  again  attached  by  a 
coroner  in  like  manner;  and  personal  property  attached  by  a  constable  may  be 
again  attached  by  a  coroner  or  by  a  deputy  in  the  same  manner. 

WHEN  PERSONAL   PROPERTY   ATTACHED   MAY  BE   SOLD   ON  WRIT. 

§  30. — Whien  personal  property  is  attached,  the  officer,  by  consent  of  the  debtor 
aaad  creditor,  may  sell  it  on  the  writ  before  or  after  entry,  observing  the  directions 


MAINE,  641 

for  selling'  on  execBtion;  and  if  it  is  atteched  hj  different  officers,  it  may  he  so 
sold  by  the  first  attaching  officer;  or  in  case  of  his  death,  if  he  was  a  dejmty  sheriff, 
by  the  sheriff  or  another  deputy  by -RTitten  consent  of  the  debtor  and  all  attaching 
creditors;  and  the  proceeds,  after  deducting  necessary  expenses,  shall  be  held  by 
the  first  attaching  officer  or  the  sheriff,  subject  to  the  successive  attachments,  as  if 
Bold  on  execution. 

§  31. — When  personal  property  liable  to  perish  be  wasted,  greatly  reduced  in 
value  by  keeping,  cr  kept  at  ^reat  expense,  is  r.ttached,  and  the  parties  do  not  con- 
sent to  a  sale  thereof,  the  same  may  be  examined  and  appraised  before  or  after 
entry  of  the  action,  as  follows: 

§  32. — At  the  request  of  either  party  interested,  the  officer  shall  grive  notice  of 
the  time  and  place  of  appraisal,  with  the  names  of  the  parties  to  the  action,  and  of 
the  supi30sed  owner  of  the  property,  by  posting  notices  thereof  in  two  or  more  pub- 
lic places  in  the  town  where  it  was  attached,  or  by  giving  personal  notice  thereof  to 
all  parties  to  the  suit  in  which  it  is  attached,  four  days  at  least  before  the  ap- 
praisal. He  shall  prepare  a  schedule  of  the  property,  and  cause  three  disinterested 
appraisers,  acquainted  with  the  nature  and  ^  alne  of  such  goods,  to  be  appointed, 
one  by  the  creditor,  one  by  the  debtor,  and  one  by  himself;  and  if  the  creditor  or 
debtor  neglects  to  appoint,  he  shall  ajtpoint  one  in  his  behalf. 

§  33. — The  appraisers_ shall  be  sworn  by  the  officer  without  fee,  or  by  a  justice 
of  the  jieace  or  trial  justice,  and  shall  examine  such  property;  and  if,  in  theiropin- 
ion,  any  part  of  it  is  liable  to  perish,  be  wasted,  be  greatly  reduced  in  value  by 
keeping,  or  kept  at  great  expense,  they  shall  appraise  it  at  its  value  in  money. 

§  34. — Thereujion,  at  the  request  of  the  debtor,  the  property  shall  be  delivered 
to  him,  on  his  depositing  with  the  officer  the  aiJi-raised  value  thereof  in  money,  or 
giving  bond  to  him  with  two  sufficient  sureties,  conditioned  to  pay  him  said  value, 
or  satisfy  all  judgments  recovered  in  the  suits  in  which  the  property  is  attached,  if 
demanded  before  the  attachments  expire,  or  within  thirty  days  after  the  time  when 
the  creditors  might  demand  pajTnent  cut  of  the  proceeds  of  the  property  if  sold  as 
hereinafter  provided;  and  he  shall  ret\nn  such  bond  with  the  writ  on  which  the 
first  attachment  is  made,  with  a  return  of  his  doings  in  relation  thereto. 

§  35. — If  the  bond  is  forfeited,  any  one  or  more  of  the  creditors  may  bring  an 
action  of  debt  thereon  in  the  name  of  the  officer,  and  shall  indorse  their  names  on 
the  writ.  If  judgment  is  for  the  defendants,  execution  for  costs  shall  be  issued 
against  them  jointly,  or  one  against  each  for  his  proportion,  as  the  court  thinks 
just.  If  judgment  is  for  the  plaintifi's,  the  money  recovered  shall  be  applied  to 
pay  their  necessary  expenses  in  prosecuting  the  suit,  not  reimbursed  by  costs  re- 
covered of  the  defendants;  and  the  residue  belongs  to  the  attaching  creditors  ac- 
cording to  their  priorities;  but  no  execution  shall  be  awarded  for  the  use  of  any 
creditor,  without  reserving  what  may  be  due  on  any  prior  attachment,  whether  the 
creditor  therein  is  a  party  to  the  suit  on  the  bond  or  not. 

§  36. — An  attaching  creditor  not  a  party  to  such  suit,  on  his  motion  before  final 
judgment  therein,  may  become  a  party  on  such  terms  as  the  court  orders,  as  if  he 
had  been  a  i>arty  originally,  and  his  name  shall  then  be  indorsed  on  the  ■vvrit;  or  he 
may  bring  scire  facias  on  the  judgment  and  recover  the  sum  due  him  on  the  bond. 
But  no  creditor  whose  cause  of  action  on  the  bond  accrued  more  than  a  year  jjrior 
to  the  suit  thereon,  shall  have  judgment  or  execution  therein,  nor  bring  such  scire 
facias  unless  within  a  year  after  the  cause  of  action  accrued. 

§  37. — If  such  property,  after  its  appraisal,  is  not  delivered  to  the  debtor  as 
aforesaid,  the  officer  shall  sell  it,  make  return  of  all  his  doings  relating  thereto, 
and  hold  and  dispose  of  the  proceeds  as  in  a  sale  by  consent. 

§  38. — The  proceeds  of  such  property  sold  by  consent  or  after  an  appraisal,  may 
be  further  attached  by  the  officer  as  property  of  the  defendant  while  remaining 
in  his  hands,  and  held  and  dispo.sed  of  as  if  the  pro^jerty  itself  had  been  attached; 
but  after  retaining  enough  to  satisfy  all  attachments  existing  thereon  at  any  time, 
nothing  herein  shall  prevent  his  paying  the  sui-pjlus  to  the  debtor. 

§  39. — When  goods  which  are  sold,  or  appraised  and  delivered  to  the  debtor  in 
the  manner  before  provided,  have  been  attached  by  several  creditors,  any  one  of 
them  may  demand  and  receive  satisfaction  of  his  judgment,  notwithstanding  any 
prior  attachments,  if  he  is  otherwise  entitled  to  demand  the  money,  and  a  sufficient 
sum  is  left,  of  the  proceeds  of  the  goods,  or  of  tlieii-  appraised  value,  to  satisfy  all 
prior  attachments. 

§  40. — When  personal  property,  attached  on  mesne  process,  is  claimed  by  a 
person  not  a  party  to  the  suit,  he  may  replevy  it  within  ten  days  after  notice  given 


5  42  MAINE. 

liim  therefor  by  the  attaching  creditor,  and  not  aftenrard;  and  after  that,  the  at- 
taching oiEcer,  ■without  impaii-ing  the  rights  of  such  person,  at  the  request  and  on 
the  z-esponsilility  of  the  plaintiff,  and  with  consent  of  other  attaching  creditors,  if 
any,  may  sell  it  at  auction  as  on  execution,  unless  the  debtor  claims  it  as  his,  and 
forbids  the  sale. 

HOW   PEOPEETT  OF  PAET  OWNEES,   WEEN  ATTACHED,   MAT  BE  DISPOSED  OF. 

§  41. — When  personal  property  is  attached  in  a  suit  against  one  or  more  part 
owners  thereof,  at  the  request  of  another  part  owner,  it  shall  be  appraised  as  here- 
inbefore provided,  one  appraiser  to  be  chosen  bj'  the  creditor,  one  by  the  officer  and 
the  other  by  the  requesting  part  ov,-ner;  and  thertupon  it  shall  be  delivered  to  such 
part  owner  en  his  giving  bend  to  the  cfficer  with  two  sufficient  sureties,  conditioned 
to  restore  it  in  like  good  order,  pay  the  appraised  value  of  the  defendant'.?  share 
therein,  or  satisfy  all  judgments  recovered  in  the  attaching  .suits,  if  demanded 
within  the  time  during  which  it  would  be  held  by  the  attachments.  Such  bord 
shall  be  returned  with  the  writ,  with  the  doings  of  the  officer  thereon,  and  if  for- 
feited, like  proceedings  may  be  had  as  are  provided  in  section  thirty-five. 

§  42.— If  any  part  of  such  appraised  value  is  so  paid,  the  defendant's  share  of 
the  property  is  thereby  pledged  to  the  party  paying;  and  if  not  redeemed  he  may 
sell  it,  and  account  to  the  defendant  for  the  balance,  if  any;  but  if  the  attachment 
is  dissolved,  he  shall  restore  such  share  to  the  defendant  or  to  the  attaching  officer 
for  him. 

ATTACHMENT  OP  PEOPERTY   MORTGAGED   OR  PLEDGED, 

§  43. — Personal  property  not  exempt  from  attachment,  mortgaged,  pledged,  or 
subject  to  an  J-  lien  created  by  law,  and  of  which  the  debtor  has  the  right  of  re- 
dempition,  may  be  attached,  held,  and  sold  as  if  unincumbered,  if  the  attaching 
creditor  first  tenders  or  pays  to  the  mortgagee,  pledgee,  or  holder,  the  full  amount 
unpaid  on  the  demand  so  secured  thereon. 

§  44.^"^Tien  personal  property,  attached  on  a  writ  or  seized  on  execution,  is 
claimed  by  virtue  of  such  mortgage,  pledge,  or  lien,  the  claimant  shall  not  bring 
an  action  against  the  attaching  cfficer  therefor  until  he  has  given  him  at  least  forty- 
«ight  hours'  written  notice  of  his  claim  and  the  trae  amount  thereof;  and  the  offi- 
cer or  creditor  may,  within  that  time,  discharge  the  claim  by  paying  or  tendering 
the  amount  due  thereon,  or  he  may  restore  the  prop)erty. 

§  45. — The  officer  may  give  the  claimant  written  notice  of  his  attachment;  and 
if  he  does  not,  within  ten  daj's  thereafter,  deliver  to  the  cfficer  a  true  account  of 
the  amount  due  on  his  claim,  he  thereby  waives  the  right  to  hold  the  property 
thereon;  and  if  his  account  is  false,  he  forfeits  to  the  creditor  double  the  amount  of 
the  excess,  to  be  recovered  in  an  action  on  the  case. 

§  46. — If  the  creditor  redeems  such  property,  and  it  is  subsequently  sold  by  the 
officer,  he  shall,  from  the  proceeds,  first  pr.y  to  the  creditor  the  amount,  with  in- 
terest, paid  by  him  to  redeem,  and  apply  the  balance,  if  any,  to  the  debt  on  which 
it  was  attached  or  seized  on  execution. 

WHEN  ATTACHING    OFFICER  DIES,   OR  IS  REMOVED,   OR  PROPERTY  IS  EEPLETIED. 

§  47.^ — Personal  property  attached  by  an  officer  and  in  his  possession,  and  his 
clainj  for  damages  when  it  is  taken  from  him,  remain  subject  to  such  attachment 
in  case,  of  his  death,  as  if  he  were  alive,  and  ai'e  not  assets  belonging  to  his  estate. 

§  48.— Such  property  replevied  from  the  officer  is  liable  to  further  attachments, 
as  if  in  his  possession;  and  if  there  is  judgment  for  a  return  in  the  replevin  suit, 
the  pilaintift'  and  his  sureties  are  liable  for  the  whole  property  or  its  value,  although 
some  attachments  were  made  after  the  replevin. 

§  49. — If  an  attaching  officer  dies  or  is  removed  from  office  ■while  the  attachment 
is  in  force,  whether  the  property  was  in  his  possession  or  not,  it  and  its  proceeds 
may  be  further  attached  by  any  other  officer,  the  same  as  it  might  have  been  by 
the  first  officer.  Such'  further  attachments  shall  be  made  by  a  return  setting  forth 
an  attachment  in  common  form  and  by  whom  the  property  was  previously  attached; 
and  if  the  goods  have  not  been  replevied,  by  leaving  a  certified  copy  of  the  vncit, 
omitting  the  declaration,  and  of  the  return  of  that  attaclunent,  ■with  the  former 
officer,  if  living,  or  if  dead,  ■with  his  executor  or  administrator,  or  if  none  has  been 
appointed,  with  the  person  having  possession  of  the  goods;  or  if  the  goods  have 
been  replevied,  and  the  officer  who  made  the  original  attachment  is  dead,  such 
copy  shall  be  left  with  the  plaintiff  in  reisle^rin,  or  his  executors  or  administrators; 
and  the  attachment  shall  be  considered  as  made  when  such  copy  is  delivered  in 
either  of  the  modes  before  described. 


MAINE.  543 

§  50. — GrOod3,  taken  by  replevin  from  an  attaching-  officer,  shall  not  be  further 
attached  r,s  property  of  the  original  defendant  in  any  other  manner  than  that  pro- 
vided in  the  two  preceding  sections,  so  lon;^  as  they  are  held  by  the  person  who 
replevied  them,  or  by  any  one  holding  under  him,  unless  the  original  defendant 
has  acquired  a  new  title  to  the  goods. 

ATTACHMENTS  AND  ACTIONS  WHEN  A  PARTY  DIES. 

§51. — The  attachment  of  personal  property  continues  in  force  after  the  death 
of  the  debtor  aa  if  living,  unless  before  a  sale  thereof  on  execution,  his  estate  is 
decreed  insolvent;  but  it  is  dissolved  by  such  a  decree,  and  the  ofiicer,  on  demand 
thereafter,  shall  restore  such  property  to  the  executor  or  administrator  on  payment 
of  his  legal  fees  and  charges  of  keeping. 

§52. — If,  after  such  decree  and  before  such  demand,  the  officer  has  sold  the 
property  on  execution,  he  is  liable  to  the  executor  or  administrator  in  an  action, 
not  of  trespass,  but  for  money  had  and  received,  for  the  proceeds,  if  in  his 
hands;  but  if  paid  over  to  the  judgment  creditor,  such  creditor  is  so  liable;  and  he 
shall  not  sat  o'l  any  demand  which  he  has  against  the  executor  or  administrator, 
or  against  the  estate  of  the  deceased. 

§  5.3. — After  the  death  of  a  defendant  and  before  a  decree  of  insolvency  on  his 
estate,  the  executor  or  administrator  may  demand  of  the  attaching  oiScer  a  certi- 
fied copy  of  liis  return  on  the  writ,  with  a  description  of  the  property  attached,  so 
that  it  may  be  described  in  the  inventory  of  the  estate  subject  to  the  attachment, 
and  the  appraisers  may  demand  a  view  thereof  so  as  to  appraise  it;  and  if  the  officer 
fails  to  comply  with  either  demand,  he  forfeits  to  the  executor  or  administrator  not 
less  than  ten  nor  more  than  thirty  dollars. 

§  51:.  — An  action,  brought  by  an  officer  for  taking  from  him  personal  property 
attached  by  him,  does  not  abate  by  the  death  of  either  party;  but  mr,y  be  prose- 
cuted by  or  against  his  executor  or  administrator.  If  the  officer  is  dead  and  his 
representative  recovers  the  property  or  money,  it  shall  be  held  and  applied  as  if  he 
were  alive ;  but  if  he  fails  to  recover,  he  shall  return  the  property  or  x^ay  the  dam- 
ages awarded  in  full,  although  the  estate  of  the  deceased  is  insolvent. 

§  55. — If  an  officer  authorized  to  serve  precepts  dies  pending  a  suit  for  or  against 
him  for  official  neglect  or  misconduct,  and  no  administration  is  granted  on  his 
estate  within  three  months  thereafter,  the  party  for  whose  benefit  the  suit  is  so 
prosecuted  or  defended,  may  carry  it  on  in  his  own  name  by  entering  his  appear- 
ance and  giving  security  for  costs,  as  the  court  directs. 

ATTACHMENT   OF   EEAL  ESTATE. 

§  56. — All  real  estate  liable  to  be  taken  in  execution  as  provided  in  chapter 
seventy-sizi;  the  right  to  cut  and  carry  away  grass  and  timber  from  land  sold  by 
this  state  or  Massachusetts,  the  soil  of  which  is  not  sold;  and  all  other  rights  and 
interests  in  real  estate,  may  l;ie  attached  on  mesne  process,-  and  held  to  satisfy  the 
Judgment  recovered  by  the  plaintiff;  but  the  officers  need  not  enter  on  or  view  the 
estate  to  make  such  attachment. 

§  57. — If  a  municipal  or  police  court  has  a  regular  seal,  and  a  recorder,  and  has 
jurisdiction  in  any  action  where  the  amount  of  damage  claimed  exceeds  twenty 
dollars,  real  estate  and  interests  in  real  estate  attachable  on  ^^'rits  from  the  su- 
preme judicial  court  may  be  attached  on  writs,  or  taken  on  executions  from  such 
court,  where  the  amount  of  the  debt  or  damage,  exclusive  of  costs,  exceeds*twenty 
dollars. 

§  58. — When  a  right  of  redeeming  real  estate  mortgaged  or  taken  on  execution 
is  attached,  and  such  estate  is  redeemed  or  the  incumbrance  removed  before  the 
levy  of  the  execution,  the  attachment  holds  the  premises  discharged  of  the  mort- 
gage or  levy,  as  if  they  had  not  existed. 

§  59. — No  attachment  of  real  estate  on  mesne  process  creates  any  lien  thereon, 
unless  the  nature  and  amount  of  plaintiff's  demand  is  set  forth  in  proper  counts,  or 
a  specification  thereof  is  annexed  to  the  writ,  nor  unless  the  officer  making  it, 
within  five  daj-s  thereafter,  files  in  the  office  of  the  register  of  deeds  in  the  county 
or  district  in  which  some  part  of  said  estate  is  situated,  an  attested  copy  of  so 
much  of  his  return  on  the  writ  as  relates  to  the  attachment,  with  the  value  of  the 
defendant's  jiroperty  which  he  is  thereby  commanded  to  attach,  the  names  of  the 
parties,  the  date  of  the  writ,  and  the  court  to  which  it  is  returnable.  If  the  copy 
is  not  so  filed  within  five  days,  the  attachment  takes  effect  from  the  time  it  is 
filed,  if  before  the  entry  of  the  action,  although  it  is  after  service  on  the  defendant. 
No  seizure  of  real  estate  on  execution  where  there  is  no  subsisting  attachment 


544  MAINE. 

thereof  made  in  the  suit  in  which  such  execution  issues,  creates  any  lien  thereon, 
unless  the  oiriccr  making  it,  within  five  days  thereafter,  files  in  the  office  of  the 
register  of  deeds  in  the  county  or  district  in  which  some  part  of  said  estate  h  situ- 
ated, an  attested  copy  of  so  much  of  his  return  on  said  execution  as  relates  to  the 
seizure,  with  the  names  of  the  parties,  the  date  of  the  execution,  tlio  amount  of 
the  debt  and  costs  named  thei-ein,  and  the  court  by  which  it  was  issued.  If  the 
copy  if  not  so  filed,  the  seizure  takes  effect  from  the  time  it  is  filed.  And  such 
proceedings  shall  be  had  in  such  office,  by  the  register  of  deeds,  as  are  prescribed  in 
chapter  seven:  Provided,  hoiixvcr,  that  all  recorded  deeds  take  precedence  over  im- 
recorded  attachments  and  seizures. 

§  CO.— When  a  right  to  redeem  real  estate  under  mortgage,  levy,  sale  on  execu- 
tion or  for  taxes,  cr  a  right  to  a  conveyance  by  contract,  is  attached,  the  plaintiff 
in  the  suit,  before  or  after  sale  on  execution,  may  pay  or  tender  to  the  person  en- 
titled thereto,  the  amount  required  to  discharge  such  incumbrance  or  fuluil  such 
contract;  and  thereby  the  title  and  interest  of  such  person  vest  in  the  plaintiff, 
subject  to  the  defendant's  right  to  redeem;  but  such  redemption  by  the  defendant 
or  any  person  claiming  under  him  by  a  title  subsequent  to  the  attachment,  shall 
not  aiicct  such  attachment,  but  it  shall  continue  in  force,  and  the  prior  incum- 
brance, as  against  it,  shall  be  deemed  discharged. 

§  61. — Such  person,  on  written  demand,  shall  give  the  plaintiff  a  true  written 
statement  of  the  amount  due  him;  and  on  payment  or  tender  thereof,  shall  release 
all  his  interest  in  the  premises;  and  if  he  refuses,  he  may  be  compelled  to  do  so 
by  a  bill  in  equity.  But  such  release  shall  recite  that  under  authority  of  this  and 
the  preceding  section,  the  plaintiff  had  attached  the  premises  and  paid  or  tendered 
the  amount  due  the  grantor;  the  plaintiff  shall  thereupon  hold  such  title  in  trust 
for  the  defendant,  and  subject  to  his  right  of  redem2:>tion,  without  power  of  aliena- 
tion until  after  one  year  from  the  termination  of  said  suit,  or  from  the  sale  of  the 
equity  on  any  execution  recovered  therein. 

HOW  A2fD  WHEN  ATTACHJIEXT3  ARE   DISSOLVED. 

§  G7. — An  attachment  of  real  or  personal  estates  continues  for  thirty  days  and 
no  longer,  after  final  judgment  in  the  original  suit,  and  not  in  review  or  error; 
except  attachments  of  equities  of  redeeming  real  estate  mortgaged  or  taken  on 
execution;  or  equities  of  redemption  sold  on  execution;  or  an  obligee's  conditional 
right  to  a  conveyance  of  real  estate  on  execution;  or  property  attached  and 
replevied;  or  property  attached  belonging  to  a  person  dying  thereafter,  or  specially 
provided  for  in  any  other  case. 

§  GS. — All  attachments  of  real  or  personal  estate  are  dissolved  by  final  judgment 
for  the  defendant;  by  a  decree  of  insolvency  on  his  estate  before  a  levy  or  sale  on 
execution;  by  insolvency  proceedings  commenced  within  four  months,  as  provided 
in  section  thirty-three  of  chapter  seventy;  by  a  reference  of  the  suit  and  all  demands 
between  the  parties  thereto,  by  a  rule  of  court,  and  judgment  on  the  report  of  the 
referees;  and  by  an  amendment  of  the  declaration,  by  consent  of  parties,  so  as  to 
embrace  a  larger  demand  than  it  originally  did,  and  judgment  for  the  plaintiff 
thereon,  unless  the  record  shows  that  no  claims  were  allowed  the  plaintiff  not 
originally  stated  in  the  writ. 

§  G9. — When  an  attachment  is  dissolved  by  judgment  for  the  defendant,  the 
clerk  of  the  court,  on  pajanent  of  twenty-five  cents,  shall  give  any  person  applying 
therefor  a  certificate  of  that  fact,  whieh  the  register  of  deeds  shall  note  on  the 
margin  of  the  record  of  the  attachment;  and  before  or  after  judgment,  the  plaintiff 
in  sucii  suit  may  cause  a  discharge  of  such  attachment,  signed  by  him,  to  be  en- 
tered on  the  margin  of  the  recoi-d  thereof;  or  he  may  give  a  certificate,  signed, 
sealed,  and  acknowledged  by  him,  that  such  attachment  is,  in  whole  or  in  part, 
discharged;  which  the  register  of  deeds  shall  record,  with  a  reference  thereto  on 
the  margin  of  the  record  of  the  attachment,  for  which  he  is  entitled  to  twenty-five 
cents,  and  for  entering  such  discharges,  twelve  cents  each. 

§  70. — Any  defendant,  whose  interest  in  real  estate  is  attached  on  mesne  i)roc- 
ess,  may  petition  in  writing  to  a  justice  of  the  supreme  judicial  court,  in  term  time 
or  vacation,  setting  forth  the  names  of  the  parties  to  the  suit,  the  court  and  county 
in  which  it  is  returnable  or  pending,  the  fact  of  the  attachment,  the  particular  real 
estate,  and  his  interest  therein,  its  value,  and  his  desire  to  have  it  released  from  the 
attachment.  Such  justice  shall  issue  a  written  notice,  which  shall  be  served  on  aU 
parties  to  the  suit  living  in  the  state,  including  trustees  mentioned  in  section  sev- 
enty-five, and  on  the  plaintiff's  attorney,  ten  days  at  least  before  the  time  fixed 
therein  for  a  hearing. 

§  71. — If,  at  t'ae  hearing,  such  justice  finds  that  such  interest  is  worth  as  much 
as  the  amount  ordered  in  tlie  writ  to  be  attached,  lie  shall  order  such  defendant  to 


MAINE.  545 

give  bonds  to  the  i)laintiff,  with  sufficient  sureties,  conditioned  to  pay  the  judg- 
ment recovered  by  the  jilaintifiF,  with  his  costs  on  the  petition,  within  thirty  d.ij-3 
after  judgment.  If  he  finds  that  it  is  worth  less,  the  bond  shall  be  conditioned  to 
pay  the  value  of  such  interest  so  found  and  costs  on  the  petition,  within  said  time. 

§  72. — The  petition  and  proceedings  thereon  shall  be  filed  in  the  clerk's  office  in 
the  county  where  the  action  is  pending  or  returnable,  and  recorded  as  a  part  of  the 
case;  and  the  bond,  when  api^roved  by  such  justice,  shall  also  be  filed  therein  for 
the  use  of  the  plaintiff. 

§  73. — The  clerk  shall  give  the  petitioner  an  attested  copy  of  the  petition  and 
proceedings,  with  a  certificate,  under  seal  of  tlie  court,  attached  thereto,  that  such 
bond  has  been  duly  filed  in  his  office;  and  the  recording  of  such  copy  and  certifi- 
cate in  the  registry  of  deeds  in  the  county  where  such  real  estate  or  interest  therein 
lies,  vacates  the  attachment. 

§74. — When  personal  property  is  attached  and  actual  possession  is  taken  by 
the  attaching  officer,  the  same  ])roceedings  may  be  had,  as  provided  in  the  four 
preceding  sections,  and  the  officer  shall  also  be  notified  of  the  hearing;  and  the  de- 
livery to  him  <:if  the  copy  and  certificate  mentioned  in  the  preceding  section  va- 
cates the  attachment,  and  he  shall  return  the  property  to  the  petitioner  on  demand. 
When  the  property  attached  is  stock  in  a  banking  or  other  corporation,  or  is  such 
that  the  attachment  must  be  recorded  in  the  to-\^Ti  clerk's  office,  such  copy  and  cer- 
tificate shall  ]je  filed  with  the  officer  of  such  corporation  or  with  the  town  clerk 
with  whom  the  attachment  is  filed;  and  thereby  the  attachment  is  vacated. 

§  75. — In  cases  of  foreign  attachment,  the  same  proceedings  originated  by  any 
principal  defendant  may  be  had,  except  that  the  bond  to  the  plaintiff  shall  be  con- 
ditioned to  i^ay  the  amount,  if  any,  which  he  may  finally  recover  against  the 
trustees,  with  costs  on  the  petition,  within  thirty  days  after  judgment,  not  exceed- 
ing the  amoimt  of  the  judgment  against  the  principal  defendant.  The  justice  shall 
also  require  the  petitioner  to  give  bond  to  each  trustee  named  in  the  petition,  with 
sureties,  in  a  sum  sufficient  to  protect  him  against  any  judgment  recovered  by  the 
plaintiff  and  paid  by  him,  and  his  legal  costs  in  the  suit,  and  the  costs  allowed  him 
by  such  justice  at  the  hearing  on  the  petition,  if  he  appears.  Such  bonds,  when 
approved  by  such  justice,  shall  be  filed  in  the  clerk's  office  for  the  use  of  the 
trustees.  The  delivery  of  the  copy  and  certificate,  hereinbefore  mentioned,  to  the 
trustees,  vacates  the  attachment  of  any  goods,  effects,  or  credits  in  their  hands  be- 
longing to  the  petitioner. 

§  76. — The  clerk  is  entitled  to  two  dollars  for  recording  the  petition  and  pro- 
ceedings, and  making  the  copy  and  certificate;  the  register  of  deeds,  seventy-five 
cents  for  recording  the  same;  and  the  officer  or  clerk,  twenty  cents  for  each  filing 
and  necessary  certificate  thereof;  and  the  party  finally  i^revailing  in  the  suit  shall 
recover  the  costs  of  these  proceedings,  taxed  as  costs  of  court  in  other  cases,  and 
certified  by  such  justice,  and  execution  shall  issue  therefor. 


Attachment  not  revived,  when — Page  69.5,  sees.  7,  8.  May  issue  against  new- 
parties — Sec.  1.3.  Not  affected  by  change  of  venue — Sec.  14.  Grantee  may  defend 
suits  in — Sec.  19.  Subsequent  attaching  creditors  may  defend  suits — Sees.  4G-51. 
In  Bankruptcy — Sec.  53. 

Trustee  process — Page  731,  sees.  1-90. 

Corporate  franchise  subject  to  attachment— Page  402,  sees.  20  and  22.  Shares 
in  aqueduct — Page  503,  sec.  6.     Steamboats — Page  496,  sec.  6. 

Lien  on  share  in  partition — Page  752,  sec.  28. 

Liens  enforced  by— Page  767,  sees.  8-42;  and  Stats.  1885,  p.  229. 

Fences — Page  268,  sec.  6.  Warehouse — Page  332,  sees.  6,  7.  Of  insurance 
company — Page  447,  sec.  28. 

In  forcible  entry  and  detainer — Page  787,  sec.  4. 

Waste  by  owner  of  attached  real  estate — Page  789,  sees.  7-13. 

Eeplevin  of  goods  attached— Pages  793-4,  sees.  15, 16. 

II  Attachment— 10 


546  MARYLAND. 

MARYLAND. 

[Revised  Code  of  1878.] 


ATTACHMENTS  AGAINST  NON-RE&IDENTS  AND  ABSCONDING  DEBTOES. 

§  1.  —Every  person,  and  every  body  corporate  that  has  the  right  to  become  a 

Elaintiff  in  any  action  or  jiroceeJing  before  any  judicial  tribunal  in  this  state,  shall 
ave  the  right  to  become  a  i>laiutifi'  in  an  attachment  against  a  non-resident  of  this 
state,  or  against  a  person  absconding. 

§  2. — Every  person  who  doth  not  reside  in  this  state,  and  every  person  who  ab- 
sconds, may  be  made  a  defendant  in  an  attachment;  and  any  corporation  not  char- 
tered by  this  state,  or  any  coi-poration  chartered  by  this  state,  but  not  having  the 
president  or  a  majority  of  the  directors  or  managers  thereof  residing  in  this  state, 
may  be  made  a  defendant  as  other  non-residents. 

§  3. — Every  person  who  shall  actually  run  away,  abscond,  or  fly  from  justice, 
or  secretly  remove  himself  from  his  place  of  abode  ^\-ith  intention  to  evade  the  pay- 
ment of  his  just  debts,  or  to  injure  or  defraud  his  creditors,  shall  be  considered  as 
having  absconded;  and  an  averment  in  the  oath  of  the  plaintiff  against  a  person  as 
having  absconded  shall,  without  other  words,  be  a  sufficient  averment  of  any  such 
conduct. 

§  4. — No  attachment  shall  issue  (except  as  hereinafter  mentioned),  unless  there 
be  an  affidavit  that  the  debtor  is  bona  fide  indebted  to  the  creditor  in  the  sum  of 

■ — ,  over  and  above  all  discounts;  and  at  the  time  of  making  the  affidavit  the 

creditor  shall  produce  the  bond,  account,  or  other  evidences  of  debt,  by  which  the 
said  debtor  is  so  indebted;  and  shall  also  make  affidavit  that  he  knows,  or  is  credi- 
bly informed,  and  verily  believes,  that  the  said  debtor  is  not  a  citizen  of  this  state, 
and  that  he  doth  not  reside  therein;  or  if  the  said  debtor  resides  in  this  state,  that 
he  doth  know,  or  is  credibly  informed,  and  verily  believes,  that  the  said  debtor 
hath  absconded. 

§  5. — The  affidavit  required  by  the  preceding  section  may  be  made  before  any 
justice  of  the  i^eace,  or  any  judge  of  a  com-t  of  law  of  this  state,  or  before  any  judge 
of  a  court  of  record  of  the  United  States,  or  of  any  state,  district,  or  territory  of 
the  United  States,  or  before  a  commissioner  appointed  by  the  state  to  take  ac- 
knowledgments of  deeds,  or  before  a  notary  public,  or  if  out  of  the  United  States, 
before  a  consul  or  vice-consul  of  the  United  States. 

§  6. — If  the  affidavit  is  made  in  this  state,  and  before  a  justice  of  the  peace,  or 
judge  in  any  other  county  than  that  in  which  the  attachment  is  to  be  issued,  there 
shall  also  be  a  certificate  under  the  seal  of  the  court  from  the  clerk  of  the  circuit 
court  of  the  county  in  which  it  is  made,  that  the  justice  of  the  i^eace  or  judge  be- 
fore whom  the  said  affidavit  was  made,  was,  at  the  time  the  same  was  made,  a 
justice  of  the  peace  or  judge,  or  the  same  may  be  certified  by  the  clerk  of  the  supe- 
rior com-t  of  Baltimore  city,  when  tlje  affidavit  is  made  in  that  city;  or  if  the  affi- 
davit be  made  out  of  the  state,  and  before  a  judge  of  a  court  of  record,  there  shall 
be  a  certificate  from  the  clerk  of  said  court,  under  the  seal  thereof,  that  at  the 
time  the  same  was  made  he  was  a  judge  of  said  court,  and  that  the  same  is  a  court 
of  record;  or  if  made  before  a  commissioner  of  this  state,  the  same  shall  be  certified 
under  his  official  seal. 

§  7. — The  affida^dt  required  by  the  i^receding  sections  maybe  made  by  the  cred- 
itor, or  one  of  them,  where  there  are  more  than  one,  or  by  the  agent  of  the  creditor 
or  creditors,  by  the  president,  cashier,  or  other  officer  of  a  corporation,  by  any  ex- 
ecutor or  administrator,  or  where  the  attachment  is  to  be  issued  in  the  name  or  in 
behalf  of  an  infant,  by  the  guardian  of  such  infant,  or  by  the  infant  himself,  or  by 
the  husband  of  a  feme  covert,  or  by  the  committee  of  a  lunatic. 

§  8. — Upon  the  affidavit  being  made,  and  the  proofs  produced  before  a  justice  of 
the  peace,  or  judge  of  the  county  or  city  where  the  attachment  is  to  be  issued,  he 
shall  forthwith  issue  his  warrant  to  the  clerk  of  the  circuit  court  or  the  superior 
court  of  Baltimore  city,  or  court  of  common  pleas,  as  the  case  may  require,  to  issue 


MARYLAND.  547 

an  attachment  against  the  lands,  tenements,  goods,  chattels,  and  credits  of  the 
said  debtor,  and  upon  the  receipt  of  said  warrant,  with  the  proofs  on  which  the 
same  was  granted,  and  not  otherwise,  the  clerk  shall  issue  such  attachment. 

§  9. — If  the  affidavit  was  made  before  any  person  authorized  to  take  the  same, 
other  than  a  judge  or  justice  of  the  comity  or  city  where  the  attachment  is  to  be 
issued,  then,  upon  producing  the  same,  certified,  ■wdth  the  proofs  as  heretofore 
required,  before  a  justice  of  the  peace  of  the  county  or  city  where  the  attachment 
is  to  be  issued,  he  shall  forthwith  issue  his  warrant  to  the  clerk  to  issue  an  attach- 
ment in  the  same  manner  as  if  the  affidavit  had  been  made  before  said  justice;  and 
the  clerk,  iipon  receipt  of  the  warrant,  affidavit  and  proofs,  shall  issue  an  attach- 
ment, as  required  by  the  preceding  section. 

§  10. — There  shall  be  issued  •with  every  attachment  a  writ  of  summons  against 
the  defendant,  and  a  declaration  or  short  note  expressing  the  plaintiff's  cause  of 
action  shall  be  filed,  and  a  coi)y  thereof  shall  be  sent  with  the  writ  to  be  set  up  at 
the  court-house  door  by  the  sheriff  or  other  officer. 

§  11. — Any  Icind  of  property  or  credits  belonging  to  the  defendant,  in  the  plaint- 
iff's o'mi  hands,  or  in  the  hands  of  any  one  else,  may  be  attached;  and  credits  may 
be  attached  which  shall  not  then  be  due. 

§  12. — Every  attachment  issued  under  the  preceding  sections  shall  contain  a 
clause  commanding  the  sheriff  or  other  officer,  at  the  time  of  executing  the  said 
attachment,  to  make  kno'wn  to  each  person  in  whose  hands  or  possession  the  lands, 
tenements,  goods,  chattels,  and  credits  so  attached  are,  if  to  him  or  them  it  shall 
seem  meet,  to  be  and  appear  on  the  return  of  such  attachment  before  the  court  out 
of  which  it  is  issued,  to  show  cause  why  such  lands,  tenements,  goods,  chattels,  or 
credits  so  attached,  should  not  be  condemned,  and  execution  thereof  had  and  made 
as  in  other  cases  of  recoveries  and  judgments  given  in  courts  of  record.  [Amended 
1880,  p.  40.] 

§  1.3. — If  neither  the  defendant  nor  the  garnishee  on  whose  hands  the  property 
or  credits  may  be  attached  shall  apx^ear  at  the  return  of  the  attachment,  the  court 
shall  and  may  condemn  the  firoperty  and  credits  so  attached,  and  award  execution 
thereof:  Provided,  that  no  such  execution  issue  unless  the  plaintiff  give  bond  or 
sufficient  security  before  the  court  awarding  the  execution,  to  make  restitution  of 
the  lands,  tenements,  goods,  chattels,  or  credits  so  as  aforesaid  condemned,  or  the 
value  thereof,  if  the  defendant  shall  at  any  time  within  a  year  and  a  day — to  be 
counted  from  the  retiu-n  of  said  attachment — appear  to  the  said  original  action,  and 
make  it  appear  that  the  claim  of  the  said  plaintiff,  or  some  part  thereof,  is  not  due 
to  the  said  plaintiff. 

§  14. — ISTo  sheriff  or  other  officer  shall  levy  by  way  of  execution  against  the  gar- 
nishee, more  than  the  plaintifi''s  debt  and  costs,  nor  more  than  what  the  said  i^laint- 
iff  shall  make  appear  to  be  the  value  of  the  property  and  credits  attached  in  the 
hands  of  such  garnishee,  together  with  such  costs  only  as  the  garnishee  shall  put 
the  plaintiff  to  by  denying  himself  to  be  indebted  to  the  defendant  and  contesting 
the  same. 

§  15. — The  garnishee  in  every  attachment  issued  in  pursuance  of  the  f)receding 
sections  may  plead  in  behalf  of  the  defendant  any  plea  or  ijleas  which  the  defend- 
ant might  or  could  plead  if  the  summons  had  been  served  upon  him  and  he  had 
appeared. 

§  16. — Any  judgment  of  condemnation  against  a  garnishee  and  execution 
thereon,  or  payment  by  such  garnishee,  shall  be  sufficient,  and  pleadable  in  bar  in 
any  action  brought  against  him  by  the  defendant  in  the  attachment  for  or  con- 
cerning the  property  or  credits  so  condemned. 

§  17. — In  all  cases  of  attachment,  whether  upon  warrant,  judgment,  or  decree, 
the  plaintiff  may  exhibit  interrogatories  in  writing  to  the  garnishee,  who  shall  by 
rule  of  cotu-t  answer  each  and  every  of  said  interrogatories  touching  or  concerning 
the  property  of  the  defendant  in  his  possession  or  charge,  or  by  him  due  or  o%ving 
at  the  time  of  serving  such  attachment,  or  at  any  other  time;  and  if  such  garnishee 
shall  neglect  or  refuse  so  to  do,  the  com-t  is  hereby  directed  to  adjudge  that  such 
garnishee  hath  in  his  jDOssession  property  of  the  defendant,  or  is  indebted  to  such 
defendant  to  an  amount  and  value  sufficient  to  pay  the  debt,  damage,  and  interest 
of  said  plaintiff  and  costs,  and  execution  shall  issue  as  in  other  cases  of  condemna- 
tion in  the  hands  of  garnishees. 

§  18. — In  all  attachments,  the  garnishee  may  appear  in  court  on  the  return  day 
of  such  attachment,  or  within  four  days  thereafter,  and  confess  the  amoimt  of 
goods,  chattels,  or  credits  in  his  hands;  and  if  the  plaintiff  will  not  take  judgment 


548  MARYLAND. 

of  condemnation  for  the  amount  so  acknowledged,  but  shall  claim  a  larger  sum, 
then  the  garnishee  shall  be  allowed  the  costs  of  suit,  imless  on  a  final  decision 
the  plaintiff  shall  recover  a  larger  amount  than  the  garnishee  acknowledged  as 
aforesaid. 

§  19.  — Any  ]  ilaintiff  in  an  attachment  may  have  the  same  laid  upon  debts  due 
the  defendant  upon  judgments  or  decrees  rendered  or  passed  by  any  of  the  courts 
of  law  or  equity  in  this  state,  and  may  have  judgment  of  condemnation  thereof  as 
upon  any  other  debts  due  said  defendant;  and  an  execution  may,  on  application  of 
any  party  to  the  court  rendering  such  judgment  or  decree,  be  issued  for  enforcing 
the  pajmient  thereof,  notwithstanding  the  attachment:  Provided,  the  money  pay- 
able on  .such  judgment  or  decree  be  in  the  said  writ  of  execTition  required  to  be 
brought  into  the  said  court,  to  be  by  such  court  preserved  or  deposited,  or  invested 
in  stocks,  to  abide  the  event  of  the  piroceedings  in  slich  attachment. 

§  20. — An  attachment  may  be  laid  on  any  interest  which  the  defendant  has  or 
may  be  entitled  to  in  the  stock  of  any  corporation,  or  in  the  debt  of  any  corpora- 
tion, transferable  upon  the  books  of  such  corporation;  and  it  shall  be  the  duty  of 
the  sheriff  or  other  officer,  in  laying  said  attachment,  to  comply  with  the  require- 
ments contained  in  this  article,  in  relation  thereto,  subtitle  Proceedings  against 
Corporations. 

§  21.— Xo  attachment  shall  be  dissolved  unless  every  defendant  appears  to  the 
action,  and  unless  a  bond  be  given  by  or  on  behalf  of  the  defendant  or  defendants, 
in  a  sum  of  money  equal  to  the  value  of  the  xjroperty  attached,  mth  security  to  be 
approved  by  the  court  or  judge  thereof,  if  in  recess,  to  satisfy  any  judgment  that 
shall  be  recovered  in  such  case  against  the  defendants. 

§  22. — Any  absent  defendant,  or  any  one  in  his  behalf,  may  file  a  petition  to  the 
judge  of  a  court  from  which  an  attachment  has  issued,  before  the  retm-n  day  of  such 
attachment,  praying  that  the  said  writ  be  quashed  and  set  aside,  and  thereupon 
the  judge  shall  order  the  sheriff  to  return  said  writ  with  the  proceedings  thereunder 
immediately  before  him,  and  the  said  judge  shall,  upon  such  return  and  after  such 
notice  as  he  shall  prescribe  to  be  given  to  the  adverse  party  or  his  attorney,  proceed 
to  hear  said  petition  and  receive  evidence  and  adjudicate  thereon,  in  the  same  man- 
ner and  to  the  same  extent  as  the  said  judge  would  be  empowered  to  do  while  sit- 
ting in  court  at  the  return  day  of  said  \\Tit,  on  motion  to  quash  and  set  aside  the 
same:  Provided,  such  petition  shall  not  prevent  the  further  execution  of  said  attach- 
ment, untU  the  judge  shall  order  the  same  to  be  quashed. 

§  2.3. — Either  party  shall  be  at  liberty  to  appeal  from  the  decision  of  the  judge 
on  said  petition  within  sixty  days  thereafter. 

§  24. — If  the  judge  shall  quash  said  attachment  and  the  plaintiff  shall  appeal 
and  give  bond  in  such  penalty  and  with  such  security  as  said  judge  may  ajiprove, 
conditioned  to  prosecute  said  appeal  with  effect,  or  in  default  thereof  to  pay  such 
costs  and  damages  as  the  absent  defendant  or  other  i)ersons  interested  in  said  prop- 
erty or  credits  may  incur,  or  suffer  by  reason  of  such  attachment  and  appeal,  the 
attachment  shall  remain  in  force  as  if  no  such  petition  had  been  filed. 

§25. — The  party  appealing  imder  the  preceding  sections  shall  have  ten  days 
from  the  date  of  the  judgment  qtiashing  any  such  -writ  of  attachment  within  which 
he  may  file  his  a^jpeal  bond,  and  the  writ  of  attachment  shall  remain  in  force  during 
that  time. 

§  26. — If  any  person  of  full  age  residing  out  of  this  state,  is  entitled  by  descent 
or  devise  to  any  lands  or  tenements  lying  in  this  state,  and  the  person  from  whom 
such  lands  descended  or  by  whom  the  same  were  devised,  was  indebted  to  any  per- 
son, the  court  in  which  any  suit  against  such  heir  or  devisee  may  be  instituted 
may  award  an  attachment  against  the  lands  and  tenements  of  such  heir  or  devisee, 
held  Ijy  descent  or  devise  from  the  person  so  indebted,  in  the  same  manner  and  to 
have  the  same  effect  as  attachments  awarded  against  other  persons  residing  out 
of -the  state. 

§  27. — Any  of  the  courts  of  this  state,  in  which  an  attachment  suit  is  pending, 
either  on  original  or  appellate  jurisdiction,  or  any  judge  thereof,  in  vacation,  may 
order  a  sale  of  any  perishable  projoerty  which  may  be  levied  on  by  virtue  of  such 
attachment,  whenever  the  court  or  judge  may  deem  such  sale  expedient,  on  such 
tei-ms  and  notice  as  the  order  may  prescribe,  and  such  sale  may  be  ordered  before 
or  after  the  return  of  the  attachment;  and  the  proceeds  of  such  sale,  after  payment 
of  the  expenses  incident  thereto,  shall  be  paid  into  court,  and  deposited  with  the 
clerk,  subject  to  the  order  of  the  comrt,  on  the  final  decision  of  the  case. 

§28. — No  writ  of  attachment  shall  be  quashed  by  reason  of  the  omission  or 
misspelling  of  the  Christian  name  of  any  non-resident  or  absconding  debtor,  but 


MARYLAND.  549 

the  court  shall  allow  such  writ  of  attachment  to  be  amended  at  any  time  before 
judgment  thereon. 

§  29.— Xo  attachment  sued  out  for  a  debt  due  to  any  minor,  feme  covert,  or  lu' 
natic,  on  the  oath  or  afiirmation  of  the  guardian,  husband,  or  committee  of  such 
minor,  /eme  covert,  or  lunatic,  shall  be  quashed  or  set  aside  for  any  defect  in  matter 
of  form. 

ATTACHMENTS  AFTER  TWO  NON  ESTS. 

§  30. — When  two  summonses  have  been  returned  non  est  aj^ainst  the  defendant 
in  any  of  the  courts  of  law  of  this  state,  the  plaintiff,  upon  proof  of  his  claim  as 
hereinbefore  requu-ed,  shall  be  entitled  to  an  attachment,  and  the  judge  of  the  com-t 
where  such  action  is  pending  shall  order  such  attachment  to  issue,  and  the  same 
proceedings  shall  be  thereupon  had  as  in  attachments  issued  against  absconding 
debtors. 

ATTACHMENTS   ON  JUDGMENTS   OK  DECEEES. 

§  31. — Any  plaintiff  having  a  judgment  or  decree  in  any  court  of  law  or  equity 
in  this  state  may,  instead  of  any  other  execution,  issue  an  attachment  against  the 
lands,  tenements,  goods,  chattels,  and  credits  of  the  defendant  in  the  plaintiff's 
own  hands,  or  in  the  hands  of  any  other  person,  which  attachment  shall  contain 
the  clause  of  scire  facias  required  in  an  attachment  against  a  non-resident  or  ab- 
sconding debtor. 

§  32. — If  neither  defendant,  nor  the  garnishee  in  whose  hands  such  property  or 
credits  were  attached,  appear  at  the  return  of  the  attachment  and  show  sufScient 
cause  to  the  contrary,  the  court  shall  condemn  the  said  property  and  credits  so 
attached,  and  award  execution  thereof. 

§  33. — The  plaintiff  may  have  more  than  one  attachment  or  writ  of  attachment, 
to  be  laid  in  the  hands  of  different  persons  or  levied  on  other  property  or  eft'ects 
than  that  taken  under  the  first,  though  the  first  be  still  outstanding:  Provided,  that 
but  one  satisfaction  of  the  debt  or  demand  shall  be  made,  and  that  it  shall  be  in 
the  discretion  of  the  com-t  in  all  such  cases  whether  any  costs,  or,  if  any,  what 
amount  of  costs  shall  be  allowed  on  the  subsequent  attachment  or  attachments. 

ATTACHMENTS   ON  ORIGINAL  PROCESS. 

§  34. — Every  person  and  every  body  corporate  that  has  the  right  to  become  a 
plaintiff  in  any  action  or  proceeding,  before  any  judicial  tribunal  in  this  state,  shall 
have  the  light  to  proceed  by  attachment  in  the  following  cases,  upon  the  conditions 
and  in  the  manner  herein  provided:  Before  any  such  WTit  of  attachment  shall  be 
issued,  the  i^laintiff,  or  some  i^ersou  in  his  behalf,  shall  make  an  affidavit  before  the 
clerk  of  the  court  from  which  said  attachment  shall  issue,  stating  that  the  defendant 
or  defendants  named  in  the  writ  of  attachment  is  bojtafdemdebtedto  the  plaintiff, 

or  plaintiffs,  in  the  sum  of dollars,  over  and  above  all  discounts;  and  that 

the  plaintiff  knows,  or  has  good  reason  to  believe  either  (first)  that  the  debtor  is 
about  to  abscond  from  this  state;  or  (second)  that  the  defendant  has  assigned,  dis- 
posed of,  or  concealed,  or  is  about  to  assign,  dispose  of,  or  conceal  his  property,  or 
Bome  portion  thereof,  with  intent  to  defraud  his  creditors;  or  (third)  that  the  de- 
fendant fraudulently  contracted  the  debt,  or  incurred  the  obligation  resf)ecting 
which  the  action  is  brought;  or  (fourth)  that  the  defendant  has  removed,  or  is  about 
to  remove,  his  property,  or  some  portion  thereof,  out  of  this  state,  with  intent  to 
defraud  his  creditors. 

§  35. — At  the  time  of  making  said  affidavit,  the  plaintiff  shall  produce  the  bond, 
account,  or  other  evidence  of  the  debt,  by  which  said  debtor  is  indebted,  and  the 
same  shall  be  filed  among  the  p)apers  in  the  cause. 

§  36. — There  shall  be  issued  with  every  attachment  issued,  under  the  provisions 
of  the  two  preceding  sections,  a  writ  of  summons  against  the  defendant,  as  is  usual 
in  actions  at  law. 

§  37. — Every  clerk,  before  issuing  an  attachment  under  the  preceding  sections, 
shall  take  from  the  plaintiff',  or  some  person  on  his  behalf,  bond  to  the  state  of 
Maryland,  with  security  to  be  approved  by  said  clerk,  in  double  the  sum  alleged 
to  be  due  by  the  defendant  or  defendants,  conditioned  for  satisfying  all  costs  which 
may  lie  awarded  to  such  defendant  or  defendants,  or  to  any  other  person  or  persons 
interested  in  the  proceedings,  and  all  damages  which  shall  be  recovered  against  the 
plaintiff  for  wrongfully  suing  out  such  attachment,  which  bond  shall  be  filed  in  the 
office  of  the  clerk  issuing  such  attachment;  the  condition  of  said  bond  shall  be  sub- 
stantially in  the  following  form:    The  condition  of  this  obligation  is  such  that, 

whereas  the  above  bounden ,  hath,  on  the  day  of  the  date  hereof,  ordered  an 

attachment  out  of  (namiug  the  court  from  which  the  said  attachment  shall  issue) 


550  MARYLA^^^. 

at  the  suit  of v. ,  for  the  sum  of ,  and  the  same  bein.?  about  to 

be  sued  out  of  said  court,  retmniable  on  the. day  of next:     Xow,  if  the 

gaid shall  prosecute  his  suit  with  effect,  or  in  case  of  failure  thereof,  shall 

well  and  truly  pay  and  satisfy  the  said ,  all  such  costs  in  said  suit,  and  such 

damages  as  shall  be  awarded  against ,  his  heirs,  executors,  or  administrators, 

in  any  suit  or  suits  which  may  be  hereafter  brought  for  wrongfully  suing  out  said 
attachment,  then  the  above  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  effect.  Every  attachment  issued  \vithout  a  bond  and  affidavit  taken  as  afore- 
said, is  hereby  declared  illegal  and  void,  and  shall  be  dismissed. 

§  38. — In  all  cases  where  two  or  more  persons  are  jointly  indebted,  either  as 
partners  or  othenvise,  and  an  affidavit  shall  be  filed  as  hereinbefore  provided,  so  as 
to  make  one  or  more  of  such  joint  debtors  amenable  to  the  i^rocess  of  attachment, 
then  the  writ  of  attachment  shall  issue  against  the  lands  and  tenements,  goods, 
chattels,  and  credits  of  such  as  are  so  brought  within  the  provisions  of  this  law; 
but  the  writ  of  summons  shall  issue  against  the  joint  defendants,  as  in  other  ac- 
tions against  joint  defendants. 

§  39. — In  case  the  defendant  is  not  satisfied  ^vith  the  sufficiency  of  the  surety  or 
sureties,  or  any  one  of  them,  or  with  the  amount  specified  in  the  bond  aforesaid,  he 
may,  at  any  time  before  judgment,  apjily  to  the  judge  of  the  com-t  in  which  the 
said  bond  is  filed  for  an  order  requiring  the  plaintiff  to  give  additional  secm-ity,  no- 
tice of  which  application  shall  be  given  to  the  plaintiff,  not  less  than  four  days 
before  the  same  is  made;  and  the  said  judge,  if  satisfied,  from  evidence  of  the  in- 
sufficiencj^  of  the  said  bond,  may  order  or  require  the  plaintiff  to  give  an  additional 
bond,  -tt-ith  secm-ity  to  be  approved  of  by  the  court,  in  such  sum  and  ^vithin  such 
time  as  he  may  deem  proper;  and  in  case  the  plaintiff  shall  fail  to  comply  with 
such  order,  the  said  writ  of  attachment  shall  be  quashed  and  the  property  attached, 
or  its  proceeds,  if  the  same  shall  have  been  sold  by  order  of  the  court,  shall  be  re- 
turned to  the  defendant. 

§  40. — The  practice  and  pleadings,  under  the  writ  of  attachment  issued  in  com- 
pliance with  the  foregoing  sections,  shall  in  all  other  respects,  not  herein  provided 
for,  conform,  as  near  as  may  be,  to  the  practice  and  proceedings  under  writs  of 
attachment  against  non-resident  and  absconding  debtors. 

CLAIMANTS   OF  PROPEETT. 

§  41. — In  all  attachments  and  writs  of  execution,  whenever  the  same  shall  be 
levied  upon  any  personal  property,  goods,  or  chattels,  which  are  claimed  by  a  per- 
son or  persons  or  corporation  other  than  the  defendant  or  defendants  in  said  at- 
tachment or  writ  of  execution,  such  person  or  persons  or  corporation  may  iile  a 
petition  with  the  court  issuing  such  attachment  or  ■RTit  of  execution,  or  with  the 
court  before  whom  such  attachment  or  writ  of  execution  is  returnable,  if  it  be  re- 
turnable before  a  court  other  than  the  court  issuing  the  same,  which  petition  shall 
clearly  set  forth  the  claim  and  right  to  the  property  so  levied  upon,  and  be  verified 
by  the  oath  or  aflSrmation  of  the  petitioner  or  some  person  in  his  behalf;  and  it 
shall  be  the  duty  of  the  clerk  to  docket  a  suit  against  both  the  plaintiff  and  de- 
fendant in  such  attachment  or  writ  of  execution,  and  issue  a  summons  directed  to 
said  plaintiff  and  defendant  giving  notice  of  such  claim,  which  summons  shall  bo 
returnable  to  the  same  term  with  the  attachment  or  writ  of  execution. 

§  42. — Upon  the  filing  of  a  bond  by  or  on  behalf  of  such  petitioner  and  claimant 
of  property  so  levied  ui^on,  in  a  sum  of  money  equal  to  double  the  appraised  value 
of  the  jjroperty,  with  security  or  securities  residents  of  this  state,  to  be  approved 
by  the  court  or  the  judge  thereof  if  in  recess,  or  by  the  clerk  if  by  reason  of  the 
absence  or  sickness  of  the  judge  his  approval  cannot  be  had  at  the  time  of  the 
filing  of  such  petition,  as  bonds  are  now  approved  by  law,  and  conditioned  for  sat- 
isfying all  costs  and  such  damages  as  shall  be  awarded  the  plaintiff  in  such  attach- 
ment or  writ  of  execution  in  case  the  plaintiff  shall  recover  judgment  of 
condemnation,  the  property  so  levied  upon  shall  be  discharged  from  the  levy: 
Provided,  that  the  damages,  if  any,  recovered  by  the  plaintiff  in  the  attachment  or 
writ  of  execution  shall  not  exceed  the  real  value  of  the  property  so  discharged  from 
levy  by  these  proceedings:  And  provided  further,  if  the  i3laintiff  fails  to  recover 
judgment  of  condemnation  for  the  property  so  levied  upon,  the  petitioner  shall  be 
awarded  his  costs,  and  shall  recover  damage  for  the  wrong  and  injury  done  him  by 
reason  of  the  illegal  seizure  and  detention  of  his  property. 

§  43. — In  case  the  plaintiff  in  such  attachment  or  writ  of  execution,  is  not  satis- 
fied with  the  sufficiency  of  the  surety  or  sureties  in  the  bond  taken  under  the  pre- 
ceding section,  he  may  at  any  time  before  judgment  apply  to  the  judge  of  the 
court  in  which  the  said  bond  is  filed,  for  an  order  requiring  the  petitioner  to  give 


MASSACHUSETTS.  551 

addional  security,  notice  of  which  application  sball  oe  given  to  the  petitioner  not 
less  than  five  days  before  the  same  is  made,  and  the  said  judge,  if  satisfied  from 
evidence  of  the  insufBciency  of  the  bond,  may  order  or  require  the  petitioner  to 
give  an  additional  bond  within  such  time  as  he  shall  deem  jDroper,  and  in  case  of 
refusal  to  comjily  with  such  order,  judgment  may  be  entered  against  such  peti- 
tioner to  the  amount  of  the  real  value  of  the  property  levied  upon,  upon  which 
execution  may  issue  as  provided  by  law,  and  said  plaintiff  may  also  have  an  execu- 
tion against  the  defendant  m  the  original  attachment  or  ■svrit  of  execution:  Provided, 
that  but  one  satisfaction  of  the  debt  or  demand  shall  be  made,  and  it  shall  be 
•within  the  discretion  of  the  court  in  all  such  cases  to  dispose  of  the  matter  of  costs. 


Before  justices  of  the  peace — Page  G80,  sees.  44-52;  p.  733,  sec.  6. 
Corporation,  interest  in  liable  to — Page  C89,  sec.  23-23. 

Exemptions — Burial  lots,  p.  329,  sec.  84;  wages,  x^-  682,  sees.  53,  54;  general, 
p.  623,  sec.  150,  and  Stats.  1884,  p.  672. 


MASSACHUSETTS. 

[Public  Statutes,  1882.] 


CHAPTER  161. 

ATTACHMENT    OF    PROPERTY — GENERAL    PROVISIONS. 

§  38. — All  real  and  personal  estate  liable  to  be  taken  on  execution  (except  such 
personal  estate  as,  from  its  natm-e  or  situation,  has  been  considered  as  exempt 
according  to  the  principles  of  the  common  law  as  adopted  and  practiced  in  this 
commonwealth,  and  except  as  provided  in  the  following  section)  may  be  attached 
upon  the  original  writ  in  any  action  in  which  debt  or  damages  are  recoverable,  and 
may  be  held  as  security  to  satisfy  such  judgment  as  the  ijlaintiff  may  recover;  but 
no  attachment  of  real  estate  shall  be  made  on  a  wi-it  returnable  before  a  trial  jus- 
tice, or  police,  district  or  municipal  court,  unless  the  debt  or  damages  demanded 
therein  exceed  twenty  dollars. 

§  39. — Railroad  cars  and  engines  in  use  and  making  regular  passages  on  rail- 
roads, and  steamboats  so  in  use  upon  water-routes,  shall  not,  within  forty-eight 
hours  previous  to  their  fixed  time  of  departure,  be  attached  upon  mesne  process, 
unless  the  officer  making  such  attachment  has  first  demanded  of  the  owners  or 
managers  thereof  other  property,  upon  which  to  make  such  attachment,  equal  in 
value  to  the  ad  damnum  in  the  \xv\t,  and  such  owners  or  managers  have  refused  or 
neglected  to  comply  with  said  demand;  and  such  attachment  shall  be  void  unless 
the  officer  certifies  in  his  return  that  he  has  made  such  demand,  and  that  the  same 
has  been  refused  or  neglected;  and  no  ship  or  vessel  shall  be  attached  on  mesne 
process  in  an  action  at  law  unless  a  declaration  is  inserted  in  the  writ  before  service 
thereof,  nor  unless  the  plaintiff  or  some  jierson  in  his  behalf  makes  affidavit  and 
proves  to  the  satisfaction  of  some  justice  of  a  court  of  record,  police,  district,  or 
municipal  court,  master  in  chancery,  commissioner  of  insolvency,  and,  except  in 
the  county  of  Suffolk,  trial  justice,  or  justice  of  the  peace,  that  he  has  a  good  cause 
of  action,  and  reasonable  expectation  of  recovering  a  sum  amounting,  exclusive  of 
all  costs,  to  at  least  one-third  the  damages  demanded  in  such  writ,  which  affidavit, 
and  the  certificate  of  the  magistrate  that  he  is  satisfied  that  the  same  is  true,  shall 
be  annexed  to  the  writ. 

§  40. — Different  attachments  may  be  made  successively  upoin  the  same  writ  by 
one  or  more  officers  and  in  one  or  more  counties,  at  anj'  time  before  the  service  of 
the  summons;  but  no  further  attachment  shall  be  made  thereon  after  the  summons 
is  served. 

§  41.  Personal  property  attached  or  taken  on  execution  by  a  constable  may  be 
further  attached  by  a  deputy  sheriff  or  other  competent  officer,  upon  any  wiit  of 


552  MASSACHUSETTS. 

attajlimcnt  or  execution  which  such  constable  is  not  authorized  to  serve;  andthere- 
uijou  such  constable  shall  make  return  upon  anl  deliver  his  ■writ,  with  the  posses- 
sion of  the  property,  to  such  deputy  sheriff  or  other  officer,  who  shall  complete  the 
service  thereof.  If  such  writ  of  attachment  has  been  returned  into  court,  the 
constable  shall  file  in  the  case  a  certificate  of  the  fact  of  such  surrender  of  pos- 
session. 

§  42. — "When  personal  property  is  attached,  or  is  taken  on  execution,  the  officer 
may  appoint  a  keeper  thereof,  if  necessary,  and  in  such  case  shall,  upon  the  ■wrlbten 
request  of  the  defendant,  remove  such  property  or  the  keeper  without  unreason- 
able delay. 

§  43. — Personal  property  attached  may  be  kept,  subject  to  the  provisions  of  the 
preceding  section,  upon  the  premises  where  the  same  is  found,  unless  the  owner  or 
occupant  of  such  premises  in  writing-  requests  the  officer  to  remove  his  keeper 
therefrom;  and  when  the  defendant  in  ^vriting-  requests  the  officer  to  allow  property 
attached  upon  the  premises  of  the  defendant  to  remain  there  until  he  may  give 
bond  to  dissolve  the  attachment,  the  property  shall  not  be  removed  until  he  has 
had  reasonable  opportunity  to  give  such  bond. 

§  44.— VvTien  goods  are  sold  or  disposed  of  by  consent  of  the  parties  or  after  an 
appraisement  as  hereinafter  provided,  the  proceeds,  while  remaining  in  the  hands 
of  the  officer,  shall  be  liable  to  be  further  attached  by  him  as  the  property  of  the 
original  defendant,  in  like  manner  as  the  goods  themselves  would  have  been  liable 
if  they  had  remained  in  the  p)Ossession  of  the  officer;  and  the  proceeds  so  attached 
shall  be  held  and  disposed  of  in  the  same  manner  as  if  the  attachment  had  been 
made  on  the  goods  themselves  before  the  sale  thereof.  But  this  shall  not  prevent 
the  officer  from  jiaying  over  to  the  defendant  the  surplus  of  the  proceeds  of  such 
sale,  after  retaining  enough  to  satisfy  all  the  attachments  actually  existing  at  the 
time  of  such  payment. 

§  45. — All  goods  taken  by  replevin  from  an  officer  who  has  attached  them  shall 
be  considered  as  still  remaining  in  his  custody  and  control  so  far  as  to  be  liable  to 
further  successive  attachments,  in  like  manner  as  if  the  goods  themselves  had 
remained  in  his  possession. 

§  4G. — If  there  is  judgment  for  a  return  of  the  goods  so  replevied,  the  jilaintiff 
in  the  replevin  and  his  sureties  shall  be  liable  for  the  whole  of  the  goods,  or  the 
value  thereof,  although  the  attachment  for  which  they  are  eventually  held  was 
made  after  the  taking  of  the  goods  by  the  replevin. 

§  47. — If  an  officer,  after  making  an  attachment  of  goods,  dies,  or  is  removed 
from  office  while  the  attachment  remains  in  force,  the  same  goods,  whether  replev- 
ied or  remaining  in  possession  of  the  officer  or  of  his  executors  or  administrators, 
may  be  fvurther  attached  by  any  other  officer  so  as  to  bind  the  goods  or  the  proceeds 
thereof,  in  like  manner  as  if  the  latter  attachment  had  been  made  by  the  first- 
mentioned  officer. 

§  48. — The  officer  making  the  latter  attachment  in  such  case  shall  not  take  the 
goods  themselves,  but  the  attachment  shall  be  made  by  a  return  setting  forth  an 
attachment  in  the  conmaon  form,  and  stating  by  whom  the  goods  were  previously 
attached,  and.  if  the  goods  have  not  lieen  replevied,  by  leaving  a  certified  copy  of 
the  writ  (without  the  declaration),  and  of  the  return  of  that  attachment,  with  the 
former  officer  if  living,  or,  if  he  is  dead,  ^^•ith  his  executor  or  administrator,  or 
v/hoever  else  then  has  possession  of  the  goods;  or  if  the  goods  have  been  replevied, 
and  the  officer  who  made  the  original  attachment  is  dead,  such  copy  shall  be  left 
Vvith  the  plaintiff  in  replevin  or  with  his  executors  or  administrators,  and  the 
attachment  shall  be  considered  as  made  when  such  copy  is  delivered  in  either  of 
the  modes  before  provided. 

§49. — Goods  taken  by  reple%'in  from  an  attaching  officer  shall  not  be  fiu-ther 
attached  as  the  property  of  the  original  defendant  in  any  other  manner  than  that 

Erovided  in  section  forty-one  and  in  the  four  preceding  sections,  so  long  as  they  are 
eld  by  the  jierson  who  replevied  them,  or  by  any  one  holding  under  him,  unless 
the  original  defendant  has  acquired  a  new  title  to  the  goods. 

§  50. — Goods  and  chattels  attached  by  an  officer,  whether  remaining  in  his  cus- 
tody at  the  time  of  his  death  or  taken  from  him  by  replevin  or  otherwise,  and  also 
all  claims  for  damages  to  goods  so  taken  from  hun,  shall  remain  subject  to  the 
attachment  in  like  manner  as  if  the  officer  had  lived,  and  shall  not  be  considered 
as  assets  in  the  hands  of  his  executors  or  administrators. 

§  51. — If  real  estate  that  is  attached  is  subject  to  a  mortgage  or  other  incum- 
brance, and  the  mortgage  is  redeemed  or  the  incimibrance  removed  before  the  le\'y 


MASSACHUSETTS.  553 

of  the  execution,  the  attachment  shall  hold  the  premises  discharged  of  the  mort- 
gage or  incumljrance,  and  the  executi(jn  may  be  ievied  in  the  same  manner  and 
with  the  same  effect  as  if  the  mortgage  or  other  incumbrance  had  never  existed. 

§  52. — If  final  judgment  in  a  case  is  rendered  for  the  plaintiff,  the  goods  and 
estate  attached  shall  be  held  for  thirty  days  after  the  judgment,  in  order  to  their 
being  taken  on  execution;  and  if  the  attachment  is  made  in  the  county  of  Nan- 
tucket and  the  judgment  is  rendered  in  another  county,  or  if  the  judgment  is  ren- 
dered in  Nantucket  and  the  attachment  is  made  in  another  county,  the  goods  and 
estate  shall  be  held  for  sixty  days  after  final  jud,gment,  unless  in  either  case  the 
attachment  has  been  dissolved  as  hereinafter  provided. 

§  53. — In  suits  in  equity  when  an  appeal  may  be  claimed  from  a  final  decree  of 
a  single  justice,  the  goods  and  estate  attached  shall  be  held  for  thirty  days  after 
such  right  of  appeal  exi^ires. 

§  54. — If  the  final  judgment  is  for  the  defendant,  the  attachment,  except  as  pro- 
vided in  the  preceding  section,  shall  be  forthwith  dissolved. 

§55. — The  final  judgment  intended  in  sections  fifty-two  and  fifty-four  is  that 
which  is  rendered  in  the  original  action,  whether  upon  appeal  or  otherwise,  and  not 
such  as  may  be  rendered  upon  a  ■s^-rit  of  error  or  writ  of  review. 

§  50. — When  real  estate,  goods,  chattels,  or  effects  are  attached,  and  the  debtor 
dies  before  they  are  taken  or  seized  on  execution,  the  attachment  shall  be  dis- 
solved, if  administration  of  the  estate  of  the  deceased  is  granted  in  this  common- 
wealth within  one  year  after  his  decease,  or  if  application  therefor  is  made  within 
said  year,  and  administration  is  afterward  granted  upon  such  application.  If  no 
such  administration  is  granted,  the  jiroperty  attached  shall  continue  bound  by  the 
attachment  in  like  manner  as  if  the  debtor  were  still  living. 

§  57. — When  the  attachment  is  of  goods,  the  officer  shall  upon  demand  deliver 
them  to  the  executor  or  administrator,  if  any  is  appointed  in  this  commonwealth 
within  the  time  limited  in  the  preceding  section,  upon  receiving  from  the  executor 
or  administrator  his  legal  fees  and  charges  for  attaching  and  keej)ing  the  goods. 

§58. — If  the  officer  sold  the  goods  on  execution  before  such  demand,  or  if  he 
has  sold  in  like  manner  any  other  chattel  interest,  or  a  right  of  redeeming  real 
estate  attached  as  aforesaid,  he  shall  not  be  considered  a  trespasser  for  so  doing; 
but  he  shall  be  liable  only  for  the  proceeds  of  the  sale  after  deducting  his  legal  fees 
and  charges  for  attaching,  keeping,  and  selling  the  goods,  and  such  proceeds  may 
be  recovered  by  the  executor  or  administrator  in  an  action  of  contract  for  money 
had  and  received. 

§  50. — If  the  officer  in  such  case  has  paid  over  the  proceeds  of  the  sale  to  the 
jud.gment  creditor  before  such  demand,  he  shall  be  exempt  from  all  further  liability 
therefor,  and  the  executor  or  administrator,  if  appointed  as  before  provided,  may 
recover  from  the  judgment  creditor  the  amount  so  j)aidto  him,  in  an  action  of  con- 
tract for  money  had  and  received. 

§  CO.— The  defendant,  in  an  action  founded  on  either  of  the  three  preceding 
sections,  shall  not  be  allowed  in  any  manner  to  set  off  a  demand  against  the  exec- 
utor or  administrator,  or  against  the  estate  of  the  deceased. 

ATTACHMENT   OF   REAL   ESTATE    AND   LEASEHOLD   ESTATES. 

§  Gl. — In  attaching  real  estate  or  a  right  or  interest  in  land,  the  officer  need  not 
enter  iipon  the  land,  or  be  within  view  of  it.  In  attaching  leasehold  estates,  the 
officer  shall  state  in  his  return  in  general  terms  the  leasehold  property  attached. 

§  G2. — No  attachment  of  real  estate  or  of  any  leasehold  estates  on  mesne  proc- 
ess shall  be  valid  against  a  subsequent  attaching  creditor,  or  against  a  person  who 
afterward  purchases  the  same  for  a  valuable  consideration  and  in  good  faith, 
unless  the  original  writ  or  a  copy  thereof  (which  copy  shall  be  certified  by  the  offi- 
cer, but  need  not  contain  the  declaration  in  the  wi-it),  and  so  much  of  the  officer's 
return  thereon  as  relates  to  the  attachment  of  the  estate,  is  deposited  as  follows, 
to  wit:  if  the  lands  attached  lie  in  a  county  (except  Suffolk)  where  there  is  but  one 
office  for  the  registry  of  deeds,  such  writ  or  copy  shall  be  deposited  in  the  office  of 
the  clerk  of  the  courts  for  such  county;  if  in  Suffolk  County,  in  the  registry  of 
deeds  for  said  county;  and  if  in  a  county  where  there  is  more  than  one  office  for 
the  registry  of  deeds,  then  in  the  registry  of  deeds  for  the  district  where  the 
attached  lands  lie. 

§  03.— Every  officer  making  such  attachment  shall  deposit  the  writ  or  copy  in 
the  clerk's  office,  or  in  the  registry  of  deeds,  according  to  the  provisions  of  the 


554  MASSACHUSETTS. 

preceding  section;  and  he  stall  be  entitled  to  receive  four  cents  a  mile  for  his 
travel  from  the  place  of  service  to  the  office  of  the  clerk  or  to  the  registry,  together 
with  his  fee  for  the  copy. 

§  64. — The  clerk  or  register  of  deeds  shall  note  on  every  such  writ  or  copy  the 
day,  hour,  and  minute  when  he  receives  it,  and  shall  file  the  same  in  his  office.  He 
shall  also  enter  in  a  book  to  be  kept  for  that  pm-pose  the  name  of  the  plaintiff  and 
the  name  of  each  defendant  whose  estate  is  attached,  the  time  when  the  attach- 
ment was  made,  and  the  time  when  the  ■m-it  or  copy  was  dejDOsited.  His  fee  in 
each  case  shall  be  twenty-five  cents,  which  shall  be  paid  on  the  delivery  of  the 
writ  or  copy,  and  may  be  taxed  for  the  plaintiff  in  his  biU  of  costs.  When  a  dis- 
solution of  an  attachment  so  entered  in  a  registry  of  deeds  appears  of  record  in  a 
court  where  the  suit  in  which  it  was  made  is  pending,  the  clerk  of  such  court  shall 
forward  to  such  registry  of  deeds  a  certificate  of  the  fact  of  such  dissolution,  stat- 
ing how  such  dissolution  was  made,  and  the  register  shall  file  the  same  with  the 
copy  of  the  original  %vrit,  and  shall  enter  the  same  in  his  docket  of  attachments. 

§  65. — If  the  writ  or  copy  is  deposited  as  aforesaid  within  three  days  after  the 
day  when  the  attachment  was  made,  the  attachment  shall  take  effect  from  the 
time  it  was  made,  otherwise  from  the  time  when  the  writ  or  copy  is  so  deposited; 
but  attachments  of  real  estate,  and  of  leasehold  estates  having  an  original  term 
of  more  than  seven  years,  shall  not  be  valid  against  purchasers  in  good  faith  for 
a  valuable  consideration,  other  than  parties  defendant  to  the  suit,  except  from  the 
time  when  the  writ  or  copy  is  deposited  as  aforesaid. 

§66. — When  an  attachment  on  mesne  process  is  made  of  real  estate  or  of  a 
right  or  interest  therein  which  has  been  fraudulently  conveyed  by  the  debtor  to  a 
third  person,  or  which  has  been  piirchased,  or  the  purchase-money  of  which  has 
been  directly  or  indirectly  paid  by  the  debtor,  and  the  title  thereto  retained  in  the 
vendor  or  conveyed  to  another  person,  with  the  design  and  for  the  purpose  of 
fraudulently  seeming  the  same  from  attachment  by  a  creditor  of  such  debtor,  or 
with  the  intent  and  for  the  purpose  of  delaying,  defeating,  or  defrauding  creditors, 
it  shall  not  be  valid  against  a  subsequent  attaching  creditor,  or  against  a  person 
who  afterward  purchases  the  estate  for  a  valuable  consideration  and  in  good  faith, 
unless  the  officer  in  addition  to  the  retiirn  required  by  the  preceding  sections  also 
returns  a  brief  description  of  the  estate  attached,  by  its  locality,  situation,  bound- 
aries, or  otherwise,  as  known  to  him,  and  the  name  or  names  of  the  person  or  per- 
sons in  whom  the  record  or  legal  title  stands. 

§  67. — The  clerk  or  register  in  such  case,  in  addition  to  the  names  of  the  parties 
to  the  writ  which  he  is  required  to  enter  as  provided  in  section  sixty-fom-,  shall 
also  enter  in  his  book  of  attachments  the  names  of  the  persons  in  whom  the  record 
or  legal  title  stands  as  returned  by  the  officer,  in  the  same  manner  as  if  the  estate 
of  such  persons  were  attached  as  defendants  in  the  writ. 

§  68. — Registers  of  deeds  and  clerks  of  courts  shall  perform  the  same  duties 
with  regard  to  the  filing  and  entering  of  copies  of  writs  and  other  papers,  in  suits 
originating  in  the  courts  of  the  United  States  and  affecting  the  title  to  real  estate 
by  attachment  or  otherwise,  as  are  required  with  regard  to  the  filing  and  entering 
of  such  papers  in  such  suits  originating  in  the  courts  of  this  commonwealth. 

ATTACHITENT  OF  GOODS,   ETC.,   WHICH  CANNOT   BE  EEMOVED. 

§  69. — When  an  attachment  is  made  of  articles  of  personal  estate  which  by  rea- 
son of  their  bulk  or  other  cause  cannot  be  immediately  removed,  a  certified  copy 
of  the  writ  (without  the  declaration),  and  of  the  return  of  the  attachment,  may  at  any 
time  within  three  days  thereafter  be  deposited  in  the  office  of  the  clerk  of  the  city 
or  town  in  which  it  is  made;  and  such  attachment  shall  be  equally  valid  and  effec- 
tual as  if  the  articles  had  been  retained  in  the  iDossession  and  custody  of  the  officer. 

§  70. — The  clerk  shall  receive  and  file  aU  such  copies,  noting  thereon  the  time 
when  received,  and  keep  them  safely  in  his  office,  and  also  enter  a  note  thereof,  in 
the  order  in  which  they  are  received,  in  the  books  kept  for  recording  mortgages  of 
personal  property;  which  entry  shall  contain  the  names  of  the  parties  to  the  suit 
and  the  date  of  the  entry.  The  clerk's  fee  for  this  service  shall  be  twenty-five 
cents,  to  be  paid  by  the  officer,  and  included  in  his  charge  for  the  service  of  the 
writ. 

ATTACHMENT  OP  SHAKES  IN  COEPORATIONS. 

§  71. — The  share  or  interest  of  a  stockholder  in  a  corporation  organized  imder 
authority  of  this  commonwealth,    or  under  the  laws   of  the  United  States  and . 
located  or  having  a  general  office  in  this  commonwealth,  may  be   attached  by 
leaving  an  attested  copy  of  the  writ  (without  the  declaration),  and  of  the  retiuni 


MASSACHUSETTS.  555 

of  the  cottachment,  with  the  clerk,  treasurer,  or  cashier  of  the  company,  if  there  is 
such  officer;  otherwise  with  any  officer  or  person  who  "has  at  the  time  the  custody 
of  the  books  and  papers  of  the  corporation. 

§  72.— A  share  or  interest  so  attached,  with  all  the  dividends  thereafter  accru- 
ing thereon,  shall,  except  as  is  othei-wise  provided  in  section  twenty-four  of  chapter 
one  hunch-ed  and  five,  be  held  as  security  to  satisfy  the  final  judgment  in  the  suit, 
in  like  manner  as  other  jjersonal  estate  is  held. 

§73. — If  the  officer  having  a  wi-it  of  attachment  against  such  stockholder  ex- 
hibits the  vn-it  to  the  officer  of  the  company  who  is  appointed  to  keep  a  record  or 
account  of  the  shares  or  interest  of  the  stockholders  therein,  and  requests  a  certifi- 
cate of  the  number  of  shares  or  amount  of  the  interest  held  by  the  defendant  in  the 
suit,  such  officer  of  the  company  shall  give  such  certificate  to  the  officer  holding 
the  writ.  If  he  unreasonably  refuses  to  do  so,  or  if  he  willfully  gives  a  false  certifi- 
cate thereof,  he  shall  be  liable  for  double  the  amount  of  all  damages  occasioned  by 
such  refusal  or  false  certificate;  to  be  recovered  in  an  action  oif  tort,  unless  the 
judgment  is  satisfied  by  the  original  defendant. 

ATTACHMENT,    ETC.,    OF  PERSONAL  PROPERTY  MORTGAGED   OR  PLEDGED. 

§  74. — Personal  property  of  a  debtor  that  is  subject  to  a  mortgage,  pledge,  or 
lien,  and  of  vv-hich  the  debtor  has  the  right  of  redemption,  may  be  attached  and 
held  in  like  manner  as  if  it  were  unincumbered,  if  the  attaching  creditor  pays  or 
tenders  to  the  mortgagee,  pawnee,  or  holder  of  the  property,  the  amount  for  which 
it  is  so  liable,  within  ten  days  after  the  same  is  demanded  as  hereinafter  provided. 

§75. — Every  such  mortgagee,  pawnee,  or  holder  shall,  when  demanding  pay- 
ment of  the  money  due  to  him,  state  in  wi'iting  a  just  and  true  account  of  the  debt 
or  demand  for  which  the  property  is  liable  to  him,  and  deliver  it  to  the  attaching 
creditor  or  officer.  If  the  same  is  not  paid  or  tendered  to  him  within  ten  days 
thereaftei-,  the  attachment  shall  be  dissolved,  and  the  property  shall  be  restored  to 
him;  and  the  attaching  creditor  shall  moreover  be  liable  to  him  for  any  damages 
he  has  sustained  by  the  attachment. 

§  76. — If  he  demands  and  receives  more  than  the  amoxmt  due  to  him,  he  shall 
be  liable  for  the  excess,  with  interest  thereon  at  the  rate  of  twelve  per  cent,  a  j^ear, 
to  be  recovered  by  the  attaching  creditor  in  an  action  of  contract  for  money  had 
and  received. 

§77. — When  property  attached  and  redeemed  as  aforesaid  is  sold  on  mesne  proc- 
ess or  on  execution,  the  proceeds  thereof,  after  deducting  the  charges  of  the  sale, 
shall  be  first  applied  to  repay  to  the  attaching  creditor  the  amount  so  j^aid  by  him, 
with  interest. 

§  78. — If  the  plaintiff,  after  having  redeemed  the  goods,  does  not  recover  judg- 
ment in  the  suit,  he  shall  nevertheless  be  entitled  to  hold  the  goods  until  the 
defendant  repays  to  him  the  sum  which  he  paid  for  the  redemption,  or  as  much 
thereof  as  the  defendant  would  have  been  obliged  to  pay  to  the  mortgagee,  pa\vnee, 
or  holder  of  the  goods,  if  they  had  not  been  attached,  with  interest  from  the  time 
when  the  same  is  demanded  by  the  defendant. 

§  79. — Personal  property  of  a  debtor  subject  to  a  mortgage,  and  being  in  the 

Eossession  of  the  mortgagor,  may  be  attached  in  the  same  manner  as  if  uniucum- 
ered;  and  the  mortgagee  or  his  assigns  may  be  sunimoned  in  the  same  action  in 
which  the  property  is  attached,  as  the  trustee  of  the  mortgagor  or  his  assigns,  to 
answer  such  questions  as  may  be  put  to  him  or  them  by  the  court  or  by  its  order 
touching  the  consideration  of  the  mortgage  and  the  amount  due  thereon. 

§  80. — If  upon  such  examination,  or  upon  the  verdict  of  a  jury  as  hereinafter  pro- 
vided, it  appears  that  the  mortgage  is  valid,  the  court,  having  first  ascertained  the 
amount  justly  due  upon  it,  may  direct  the  attaching  creditor  to  pay  the  same  to 
the  mortgagee  or  his  assigns  within  such  time  as  it  orders;  and  if  the  attaching 
creditor  does  not  pay  or  tender  the  sum  within  the  time  prescribed,  the  attachment 
shall  be  void,  and  the  property  shall  be  restored. 

§  81.— If  the  attaching  creditor  denies  the  validity  of  the  mortgage,  and  moves 
that  the  same  may  be  tried  by  a  jury,  the  court  shall  order  such  trial  on  an  issue 
to  be  framed  under  the  direction  of  the  court,  and,  if  upion  such  examination  or 
verdict  the  mortgage  is  adjudged  valid,  the  mortgagee  or  his  assigns  shall  recover 
his  costs. 

§  82. — "When  the  creditor  has  paid  to  the  mortgagee  or  his  assigns  the  sum 
directed  by  the  court,  he  shall  be  entitled  to  retain  out  of  the  proceeds  of  the 


556  MASSACHUSETTS. 

property  attached,  wlien  sold,  the  sum  so  paid  with  interest,  and  the  balance  shall 
be  applied  to  the  payment  of  his  debt. 

§  83. — If  the  attaching  creditor  after  having-  paid  the  sum  directed  by  the  court 
does  not  recover  judgment  in  the  siiit,  he  .shall  nevertheless  be  entitled  to  hold  the 
property  until  the  debtor  has  repaid  with  interest  the  sum  so  paid. 

ATTACHMENT  OF   EEAL  ESTATE  OF  NON-EESIDENT. 

Whenever  the  i-eal  estate  of  a  non-resident  is  attached  in  any  suit  now 
pending  or  hereafter  brought  in  any  court  of  this  commonwealth,  and  no  personal 
service  is  made  upon  the  defendant,  such  suit  shall  be  dismissed,  unless  notice 
thereof  is  given  in  such  manner  as  the  court  may  direct,  within  one  year  from  the 
entry  of  the  suit,  or  in  suits  now  fiending  within  one  year  from  the  passage  of  this 
act.     (Statutes  1884,  p.  2i9.) 

SrPPLEJIEXTARY  PROCESS. 

§  84. — When  the  service  of  a  writ,  process,  or  order  is  defective  or  insufficient, 
the  coiul;  or  tribunal  to  which  the  same  is  returnable  may,  upon  the  motion  of  the 
plaintiff  or  petitioner,  issue  further  writs,  processes,  and  orders,  to  be  served  in 
such  manner  as  may  be  therein  directed;  and  upon  due  service  thereof  the  court 
or  tribunal  shall  thereby  accjuire  the  same  jurisdiction  of  the  subject  and  of  the 

Earties  as  it  would  have  obtained  if  such  service  had  been  made  in  pursuance  and 
y  virtue  of  the  original  writ,  process,  or  order.     The  action,  suit,  or  ijroceeding 
shall  be  continued  from  term  to  term,  or  time  to  time,  imtil  such  service  is  had. 

§  8.5. — At  any  time  during  the  pendency  of  a  suit,  Hbel,  petition,  or  other  pro- 
ceeding at  law  or  in  equity,  before  a  trial  justice,  police,  district  or  municipal  court, 
or  before  the  superior  court  or  supreme  judicial  court,  upon  the  institution  of 
which  an  attachment  is  authorized  by  law,  such  trial  justice  or  the  court  in  which 
such  cause  is  i:)ending,  or  a  ju.stice  thereof  in  term  time  or  vacation,  may,  on  mo- 
tion, ex  parte,  upon  good  cause  shown,  direct  by  special  precept  that  an  arrest  of 
the  defendant,  or  an  attachment  of  his  property  by  trustee  process,  or  otherwise, 
be  made  to  secure  the  judgment  cr  decree  which  the  plaintiff  may  obtain  in  said 
cause;  but  no  an-est  of  the  defendant  shall  be  authorized  unless  the  plaintiff  or 
some  person  in  his  behalf  makes  affidavit  and  proves  to  the  satisfaction  of  the  court 
or  trial  justice  the  same  facts  that  are  reqxiired  to  be  proved  to  authorize  arrests 
on  mesne  process. 

§86. — The  form  of  such  precepts  shall  be  the  same,  so  far  as  practicable,  aa 
that  established  for  original  writs  of  attachment  and  arrest;  but  the  supreme  ju- 
dicial court  may,  by  general  rules,  at  any  time  establish  forms  therefor. 

§  87. — Such  precepts  may  be  served  by  an  officer  authorized  to  serve  the  origi- 
nal process  in  the  cause,  and  shall  be  returnable  as  may  be  directed  by  the  court 
issuing  the  same. 

§  88. — Attachments  and  arrests  so  made  shall  be  subject  to  all  the  provisions  of 
law  relating  to  attachments  and  arrests  upon  mesne  process,  so  far  as  applicable. 

SALE  OF  PERSONAL  PROPERTY  ATTACHED. 

§89. — When  personal  property  is  attached,  whether  on  one  or  more  writs,  and 
the  debtor  and  all  the  attaching  creditors  consent  in  writing  to  the  sale,  the  attach- 
ing officer  shall  sell  it  in  the  manner  prescribed  by  law  for  selling  like  property  on 
execution;  and  the  proceeds  of  the  sale,  after  deducting  the  necessary  charges, 
shall  be  held  by  the  officer  subject  to  the  attachments,  and  shall  be  disposed  of  ia 
like  manner  as  the  propertj'  would  have  been  held  and  disposed  of  if  it  had  re- 
mained unsold. 

§  90. — "WTien  an  attachment  is  made  of  live  animals  or  of  goods  or  chattels 
which  are  liable  to  perish,  waste,  or  be  greatly  reduced  in  value  by  keeping,  or 
which  cannot  be  kept  without  great  and  disproportionate  expense,  and  the  parties 
do  not  consent  to  a  sale  thereof  as  before  provided,  the  property  so  attached  shall 
upon  the  request  of  either  of  the  parties  interested  be  examiaed,  appraised,  and 
sold  or  otherwise  disposed  of  in  the  manner  following. 

§  91. — Upon  such  application  made  by  either  party  to  the  attaching  officer,  he 
shall  give  notice  to  all  the  other  parties  or  their  attorneys,  prepare  a  schedule  of 
the  goods,  and  cause  three  disinterested  persons  acquainted  with  the  nature  and 
value  of  such  goods  to  be  appointed  and  sworn  before  a  magistrate  or  the  attaching 
officer  to  the  faithful  discharge  of  their  duty  as  appraisers. 

§  92. — If  the  defendant  is  not  within  the  commonwealth  and  has  no  attorney 
thereia,  the  notice  shall  be  left  in  writing  at  his  last  and  usual  place  of  abode  in  the 


MASSACnUSETTS,  557 

commonwealth  if  he  has  any,  other-w'ise  it  shall  be  deli\^retT  to,  or  left  at  the  dwell- 
ing-house or  place  of  business  of,  the  person  who  had  possession  of  the  property  at 
the  time  of  the  a.ttachnient. 

§  93. — The  appraisers  shall  be  appointed,  one  by  the  creditor  or  creditors  in  the 
several  suits,  one  by  the  debtor  or  debtors,  and  one  by  the  officer,  and  if  the  debt- 
ors or  creditors  resi^ectively  neglect  to  appoint  such  api:)raiser,  or  do  not  agree  int 
the  nomination,  the  officer  shall  appoint  one  in  their  liehalf. 

§  94. — The  apjwaisers  shall  examine  the  attached  property,  and  if  they  are  of 
opinion  that  the  same  or  a  part  thereof  ir;  liable  to  j^erish  or  waste,  or  to  lie  greatly 
reduced  in  value  by  keeping,  or  that  it  cannot  be  kept  without  great  and  disjiro- 
portionate  expense,  they  shall  proceed  to  appraise  the  same  according  to  the  best 
of  their  skill  and  judgment  at  the  value  thereof  in  money;  and  the  goods  shall 
thereupon  be  sold  by  the  officer,  and  the  proceeds  held  and  disi^osed  of  in  the  man- 
ner before  provided  in  the  case  of  a  sale  hy  consent  of  parties,  unless  the  goods  are 
taken  by  the  debtor  as  provided  in  the  following  section. 

§  95. — The  goods  so  appraised  .shall  be  delivered  to  the  debtor,  if  he  requires  it, 
upon  his  depositing  with  the  attaching  officer  the  appraised  value  thereof  in  money, 
or  giving  bpnd  to  him  in  a  sufficient  penalty  and  with  two  sufficient  sureties,  con- 
ditioned to  pay  to  him  the  appraised  vahie  of  the  goods  or  satisfy  all  such  judg- 
ments as  may  be  recovered  in  the  suits  in  which  the  goods  were  attached,  if  de- 
manded within  the  time  during  which  the  goods  would  have  been  held  by  the 
respective  attachments,  or  within  thirty  days  after  the  time  when  the  creditors 
respectively  would  have  been  entitled  to  demand  payment  out  of  the  proceeds  of 
the  goods  if  they  had  been  sold  as  before  provided. 

§  96. — The  officer  taking  such  bond  shall  return  the  same  with  the  writ  on  which 
the  first  attachment  is  made  in  like  manner  as  bail-bonds  are  returned;  with  a  cer- 
tificate of  his  doings  in  relation  thereto;  and  if  the  bond  is  forfeited,  the  creditors 
or  any  of  them  may  bring  an  action  of  conti'act  thereon  in  the  name  of  the  officer. 

§  97. — The  -writ  in  such  action  shall  in  addition  to  the  usual  indorsement  have 
also  indorsed  on  it  the  names  of  the  creditoi"3  by  whom  the  action  i3  brought;  and 
if  judgment  is  rendered  for  the  defendants,  executions  for  the  costs  shall  be  issued 
against  all  the  creditors  whose  names  are  so  indorsed. 

§  98. — If  judgment  is  rendered  for  the  plaintiff,  the  money  recovered  shall  be 
first  applied,  under  the  order  of  the  court,  to  pay  the  reasonable  expenses  of  jirose- 
cuting  the  suit,  so  far  as  the  same  are  not  reimbursed  by  the  costs  recovered  of  the 
defendant;  and  the  residue  shall  belong  to  all  the  attaching  creditors,  according  to 
their  respective  rights. 

§  99. — The  court  may  upon  a  hearing  in  equity  determine  the  rights  of  the  sev- 
eral attaching  creditors,  and  award  a  sejiarate  execution  for  the  amount  due  or 
payable  to  each,  to  be  served  and  levied  to  his  owm  use  in  the  manner  provided 
when  a  judgment  is  rendered  on  an  administration  bond;  or  they  may  award  one 
execution  for  the  whole  sum  due  on  the  bond,  and  cause  the  money  received  to  be 
distributed  among  the  creditors  according  to  their  respective  rights. 

§  100. — No  judgment  or  execution  shall  be  awarded  for  the  use  of  a  creditor 
without  reserving  as  much  as  may  be  due  upon  any  jDrior  attachment,  whether  the 
creditor  in  such  prior  suit  is  or  is  not  one  of  those  by  whom  the  action  is  brought 
on  the  bond. 

§  101. — A  creditor  entitled  to  the  benefit  of  the  bond,  who  has  not  joined  in 
bringing  the  action  thereon,  may  bring  a  writ  of  scire  facias  on  the  judgment,  and. 
recover  any  sum  due  to  him  upon  the  bond;  or  he  may  upon  motion,  at  any  time 
before  final  judgment,  be  allowed  upon  such  terms  as  the  court  prescribes  to  be- 
come a  party  to  the  action,  as  if  he  had  been  one  of  those  by  whom  it  was  origi- 
nally brought. 

§  102. — No  creditor  whose  cause  of  action  on  such  bond  accrued  more  than  one 
year  before  the  commencement  of  the  action  shall  have  judgment  or  execution  ia 
such  action,  and  no  creditor  shall  sue  out  a  writ  oi  scire  facias  on  the  juv^gment, 
unless  within  one  year  after  his  cause  of  action  accrues. 

§  103. — When  goods  which  are  sold  or  appraised  and  delivered  to  the  debtor  in 
the  manner  before  provided  are  attached  by  several  creditors,  any  one  of  them 
may  demand  and  receive  satisfaction  of  his  judginent,  notwithstanding  a  prior  at- 
tachment, if  he  is  otherwise  entitled  to  demand  the  money,  and  if  a  sufficient  sum 
of  the  proceeds  of  the  goods,  or  of  their  appraised  value,  ig,  left  to  satisfy  all  prior- 
attachments. 


558  MASSACHUSETTS. 


§  104. — Any  Iwncl  required  to  be  given  by  a  party  in  tte  course  of  a  civil  suit 
or  proceeding  may  be  executed  b}'  any  person  other  than  the  party  to  the  suit  or 
proceeding,  and  may  be  approved  in  the  same  manner  as  if  executed  by  such  party, 
if  it  appears  to  the  magistrate  approving  it  that  there  is  good  reason  why  the  same 
is  not  signed  by  such  party. 

JOINT   PERSONAL   PROPERTY  ATTACHED   ON  A   WRIT  AGAINST   PART   OWNER. 

§  105. — \yhen  personal  property  belonging  to  two  or  more  persons  is  attached 
in  a  suit  against  one  or  more  of  them,  it  shall,  upon  the  request  of  any  other  of  the 
part  o^^^lers,  be  examined  and  appraised  in  the  manner  before  provided  for  an  ap- 
praisement made  at  the  request  of  a  party  in  the  suit;  except  that  the  part  owner 
who  makes  the  application  shall  appoint  one  of  the  appraisers,  and  the  debtor  shall 
not  appoint  any. 

§  106. — The  property  so  appraised  shall  be  delivered  to  the  part  owner  at  whose 
request  it  was  appraised,  upon  his  giving  bond  to  the  attaching  officer  in  a  suffi- 
cient penalty,  with  two  sufficient  sureties,  and  conditioned  to  restore  such  property 
in  like  good  order  or  to  pay  the  officer  the  appraised  value  of  the  defendant's  share 
or  interest  therein,  or  to  satisfy  all  such  judgments  as  may  be  recovered  in  the  suit 
in  which  it  is  attached,  if  demanded  within  the  time  during  which  the  property 
would  have  been  held  by  the  respective  attachments. 

§  107 i' — If  such  appraised  value  or  any  part  thereof  is  so  paid,  the  defendant's 
share  of  the  i^roperty  shall  thereby  become  pledged  to  the  party  to  whom  it  waa 
delivered,  aud  he  may  sell  it,  if  not  redeemed,  and  shall  account  to  the  defendant 
for  the  balance  of  the  proceeds  of  the  sale. 

§  108. — If  the  attachment  is  dissolved,  the  party  to  whom  the  defendant's  share 
was  delivered  shall  restore  the  same  to  the  defendant  or  to  the  officer,  to  be  by  him 
delivered  to  the  defendant. 

§  109. — The  doings  of  the  officer,  together  with  the  bond,  shall  be  returned  by 
him  in  the  manner  before  provided  for  the  case  of  a  bond  given  by  a  debtor  upon 
the  delivery  to  him  of  proi^ertj'  attached;  and  ujDon  the  forfeitm-e  of  such  bond, 
like  p>roceedings  may  be  had  as  are  j)rovided  upon  the  forfeiture  of  the  bond  given 
by  the  debtor. 

ATTACHMENT  DISPUTED   BT  PERSONS   HAVING  SUBSEQUENT  LIENS,   ETC. 

§  110. — When  a  person  claims  title  or  interest  by  force  of  a  subsequent  attach- 
ment, purchase,  or  mortgage,  or  in  any  other  manner,  in  any  estate  real  or  per- 
sonal that  is  attached  in  a  suit  Ijetween  other  persons,  he  may  dispute  the  validity 
and  effect  of  the  prior  attachment,  on  the  ground  that  the  sum  demanded  in  the 
first  suit  was  not  justly  due,  or  was  not  payable  when  the  action  was  commenced. 

§  111. — The  i^erson  objecting  to  the  attachment  may  file  his  petition  in  the  coiu^ 
in  which  the  first  suit  is  pending,  at  any  time  before  final  judgment  therein,  pray- 
ing that  the  prior  attachment  may  be  dissolved,  and  setting  forth  the  facts  and  cir- 
cumstances on  which  his  petition  is  founded,  and  the  grounds  of  his  own  claim. 

§  112. — The  petitioner  or  some  person  in  his  behalf  shall  make  oath  that  his 
claim  is  just  and  legal,  and  that  all  the  other  facts  set  forth  in  the  petition  are  true, 
or  are  believed  by  the  deponent  to  be  so. 

§  113. — The  court  upon  the  hearing  of  the  petition  shall  on  the  motion  of  either 
party  direct  a  trial  Ijy  jiu-y  of  any  question  of  fact  arising  in  the  inquiry,  and  if  it 
appears  to  the  court  that  a  part  of  the  siun  demanded  in  the  prior  suit  is  not  justly 
due,  or  was  not  paj'able  when  the  action  was  commenced,  it  shall  order  the  attach- 
ment therein  made  to  be  dissolved  in  whole  or  in  i^art  as  justice  requires;  but  such 
order  shall  have  no  other  effect  on  the  prior  suit. 

§  114. — The  proceedings  between  the  two  adverse  claimants  or  plaintiffs  shall 
not  be  affected  by  any  answer,  plea,  or  other  act  of  the  defendant  in  the  prior 
suit,  nor  by  the  judgment  rendered  therein. 

§  115. — No  attachment  shall  be  dissolved  in  manner  aforesaid  by  reason  of  a  de- 
fense to  the  action  founded  on  the  laws  for  the  limitation  of  actions,  requiring  cer- 
tain contracts  to  be  made  in  wi-iting,  or  of  any  other  like  defense,  if  it  ajupears  to 
the  court  that  the  demand  is  otherwise  weU  founded,  and  is  justly  and  equitably 
due. 

§  110. — The  court  may  upon  such  inquiry  award  to  either  party  reasonable 
costs;  and,  if  the  prior  attachment  is  maintained,  may  award  to  the  attaching 


MASSACHUSETTS.  559 

creditor  reasonable  damages;   and  execution  may  he  issued  for  such  costs  and 
damages. 

§  117. — The  court  shall  also,  upon  the  filing  of  the  petition,  require  a  bond  or 
recognizance  of  the  petitioner,  or  of  some  person  in  his  behalf,  with  sufficient  surety 
or  sureties,  conditioned  to  jiay  to  the  adverse  party  all  such  damages  and  costs  as 
may  be  awarded  to  him  in  the  proceedings  upon  the  petition. 

§  lis. — If,  during  the  pendency  of  the  proceedings,  the  action  in  which  the  at- 
tachment is  made  is  carried  to  a  higher  court,  the  inquiry  concerning  the  attach- 
ment shall  be  carried  to  the  same  com-t,  and  there  heard  and  determined  as  if  the 
action  had  been  originally  commenced  there. 

§  119. — The  decision  or  judgment  of  the  court  upon  such  an  inquiry,  whether 
the  attachment  is  thereby  vacated  or  held  to  be  valid  and  effectual,  shall  be  a  bar 
to  any  action  brought  by  the  petitioner  against  the  party  who  made  the  attach- 
ment, for  any  supposed  fraud  or  deceit  therein. 

§  120.— Nothing  contained  in  the  ten  preceding  sections  shall  apply  to  an  ac- 
tion commenced  before  a  trial  justice. 

EEDUCTION   OF   EXCESSIVE  ATTACHMENTS. 

§  121. — If  an  excessive  attachment  of  goods  or  estate  is  made  on  mesne  process, 
the  defendant  may  apply  in  writing,  in  any  county,  to  a  justice  of  the  court  to 
which  such  process  is  returnable,  for  a  reductron  of  the  amount  of  the  attachment; 
and  such  justice  shall  order  a  notice  to  the  plaintiff,  retiu'nable  before  himself  or 
any  other  justice  of  the  same  court  as  speedily  as  circumstances  i^ermit.  If,  upon 
summarily  hearing  the  parties,  it  is  found  that  the  attachment  is  excessive,  the 
justice  shall  order  it  to  be  reduced,  or  a  part  of  the  goods  or  estate  to  be  released, 
and  thereafter  the  attachment  shall  be  deemed  to  be  reduced  or  j)artially  released, 
according  to  such  order. 

DISSOLUTION   OF  ATTACHMENTS   BY   GIVING   BOND. 

§  122. — A  person  or  corporation  Avhose  goods  or  estate  are  attached  on  mesne 
process  in  a  civil  action  may,  at  anj'  time  before  final  judgment,  dissolve  such  at- 
tachment by  giving  bond  with  sufficient  sureties,  to  be  approved  Ijy  the  plaintiff  or 
his  attorney  in  writing,  or  by  a  master  in  chancery,  or  by  a  justice  of  a  court  of 
record,  or  of  a  police,  district,  or  municipal  court,  or  commissioner  of  insolvency, 
when  the  attachment  is  made  within  the  jurisdiction  of  such  justice  or  commis- 
sioner, and  with  condition  to  pay  to  the  j^laintiff  the  amount,  if  any,  that  he  may 
recover  within  thirty  days  after  the  final  judgment  in  such  action;  and  also  to  pay 
to  the  plaintiff,  Avithin  thirty  days  after  the  entry  of  any  special  judgment  in  ac- 
cordance with  chapter  one  huudi-ed  and  seventy-one,  the  sum,  if  any,  for  which 
such  special  judgment  shall  be  entered.  No  sureties  shall  be  deemed  sufficient  un- 
less they  are  satisfactory  to  the  plaintiff,  or  unless  it  is  made  clearly  to  appear  to 
the  magistrate  that  each  one,  if  there  are  only  two,  is  worth,  above  what  will  pay 
his  debts,  a  sum  equal  to  that  for  which  the  attachment  is  laid;  or,  if  there  are 
more  than  two,  that  they  are  together  worth  twice  such  sum. 

§  123. — Before  such  bond  is  approved  by  a  magistrate  named  in  the  preceding 
section,  the  party  whose  goods  or  estate  are  attached,  or  some  one  in  his  behalf, 
shall  make  application  in  wi-iting  to  the  magistrate,  specifying  therein  the  names 
and  places  of  residence  of  the  persons  proposed  as  sureties.  The  same  notice  of  the 
time  and  place  of  the  hearing  thereon  shall  be  given  to  the  plaintiff  or  his  attorney 
as  is  required  upon  the  taking  of  depositions;  but  the  plaintiff  or  his  attorney  may 
in  writing  waive  such  notice,  or  may  approve  the  bond  at  any  time. 

§  124. — The  fees  of  the  magistrate  for  approving  such  bond  shall  be  one  dollar 
for  the  hearing  and  decision,  and  fifty  cents  for  the  citation.  If  the  attachment  is 
dissolved,  such  fees  shall  be  taxed  in  the  defendant's  costs,  if  he  prevails  in  the 
suit. 

§  125. — Such  bond  shall  be  filed  by  the  defendant  with  the  clerk  of  the  court  to 
which  the  writ  is  retm-nable,  or  in  which  it  is  pending,  within  ten  days  after  its 
approval  by  the  plaintiff  or  his  attorney,  or  by  the  magistrate;  and  the  attachment 
shall  not  be  dissolved  until  the  bond  is  so  filed.  Such  bond,  and  the  bonds  pro- 
vided for  lay  the  three  following  sections,  may  be  taken  from  the  files,  at  any  time, 
by  the  plaintiff,  upon  leaving  on  file  a  copy  thereof  attested  by  the  clerk;  and  the 
plaintiff  may  tax  the  cost  of  such  copy,  as  part  of  his  costs,  in  a  suit  on  such  bond. 

§  126. — A  defendant  who  does  not  desire  to  give  the  bond  required  by  section 
one  hundred  and  twenty-two  may,  at  any  time  before  final  judgment,  release  the 


660  MASSACHUSETTS. 

property  attached,  or  sxich  part  thereof  as  he  may  elect,  from  such  attachment;  by 
giving  liond  to  the  plaintiff  with  sufficient  sureties,  to  be  approved  by  the  plaintiil 
or  by  his  attorney  in  \\Titing,  or  by  a  master  in  chancer}',  or  by  a  justice  or  commis- 
Bioner  named  in  section  one  hundred  and  twenty-two,  when  the  attachment  is  made 
within  the  jurisdiction  of  siich  justice  or  commissioner,  with  condition  to  pay  to  the 
plaintiff  within  thirty  days  after  final  judgment  in  such  action,  or  after  the  entry 
of  a  special  judgment  therein  under  chapter  one  hundred  and  seventy-one,  the  sum 
fixed  as  the  value  of  the  property  so  released,  or  so  much  of  said  sum  as  may  be 
necessary  to  satisfj-  the  amount,  if  any,  that  the  plaintiff  may  recover;  and  the 
propertj'  so  released  shall  be  described  in  such  bond.  If  the  parties  to  the  action 
do  not  agi-ee  upon  the  value  of  the  property,  the  defendant,  or  some  one  in  his  be- 
half, may  make  ^\'Titten  apiolication  to  any  magistrate  authorized  to  approve  said 
bond  in  the  county  where  the  property  is,  stating  the  names  of  the  parties  to  the 
action,  the  name  of  the  officer  who  made  the  attachment,  and  a  description  of  the 
property  which  he  desires  to  release  from  attachment,  and  the  names  and  places  of 
residence  of  the  persons  jiroj^osed  as  sureties.  The  magistrate  shall  forthwith  cause 
written  notice  of  the  application  to  be  served  upon  the  plaintiff,  if  he  resides  in  the 
county;  if  not,  upon  the  ofS.cer  who  made  the  attachment,  appointing  a  time  and 
place  for  hearing  the  parties.  Said  notice  shall  be  served  twenty-four  hours,  at 
least,  l:)efore  the  time  appointed  therein  for  a  hearing,  and  as  much  more  as  the 
magistrate  may  order.  At  the  time  and  place  appointed,  after  hearing  the  parties, 
the  magistrate  shall  appoint  three  disinterested  persons  to  examine  and  appraise 
the  property  described  in  the  application,  who  shall  be  sworn  and  shall  aj^praise 
the  same  at  its  fair  market  value,  and  who  shall  make  return  of  their  doings  in 
writing  to  the  magistrate,  at  a  time  and  place  fixed  by  him,  to  which  the  hearing 
Bhall  be  adjourned.  At  such  adjourned  hearing,  the  defendant  may  give  bond  to 
the  plaintiif,  viith  sufficient  sureties,  to  be  api^roved  by  the  magistrate,  as  herein 
provided.  Upon  the  filing  of  such  bond,  as  required  in  the  preceding  section,  the 
attachment  uiaon  the  property  described  in  such  bond  shall  be  dissolved. 

§  127. — The  magistrate  may  adjourn  such  hearing  from  time  to  time  as  he  may 
deem  necessary.  His  fees  shall  be  one  dollar  for  each  citation,  and  two  dollars  for 
each  hearing  and  each  adjournment  thereof.  The  fees  of  the  appraisers  shall  be 
determined  by  the  magistrate  according  to  the  circumstances  of  each  case.  The 
applicant  shall  pay  all  fees;  but  in  case  of  final  judgment  in  his  favor  he  shall  be 
allowed  to  tax  them  as  a  part  of  his  costs.  The  magistrate's  certificate  of  the 
amount  shall  be  required  by  the  clerks  of  courts  to  be  filed  in  the  case  before  al- 
lowing said  fees  as  a  part  of  the  taxable  costs. 

§  128. — When  an  attachment  of  real  property  is  made  under  the  provisions  of 
sections  sixty-six  and  sixty-seven,  the  person  in  whose  name  the  record  title  of 
the  property  attached  stands,  or  some  one  in  his  behalf,  ma}',  before  final  judgment 
in  the  action,  dissolve  the  attachment  by  giving  bond  to  the  plaintiff,  with  sufii- 
cient  sureties,  conditioned  to  pay  to  him,  if  he  establishes  his  title  to  the  land  in  a 
writ  of  entry  against  the  person  having  the  record  title  thereto  at  the  time  of  the 
attachment,  the  sum  ascertained  to  be  the  value  of  the  land,  or  so  much  thereof  as 
shall  satisfy  the  amount,  if  any,  which  the  plaintiff  shall  recover  upon  final  judg- 
ment, or  special  judgment  under  chapter  one  hundred  and  seventy-one,  in  the  suit 
in  which  such  attachment  was  made.  All  proceedings  required  in  the  two  preced- 
ing sections  shall  apply  to  the  dissolution  of  an  attachment  imder  this  section.  In 
the  trial  of  a  vrrit  of  entry,  brought  by  the  plaintiff  in  the  suit,  to  try  his  right  to 
the  land  so  released  from  attachment,  for  the  jjurpose  of  establishing  his  right  to 
recover  on  said  bond,  the  record  of  the  attachment,  and  of  final  judgment  or  of 
special  judgment,  as  the  case  may  be,  in  the  suit  in  which  the  attachment  was 
made,  shall  be  conclusive  evidence  of  a  momentary  seizin  of  the  land  in  the  i)laint- 
ifl,  so  far  as  to  enable  him  to  maintain  an  action  therefor  upon  his  own  seizin;  but 
no  such  writ  of  entry  shall  be  brought  after  the  expiration  of  one  year  from  the 
date  of  such  final  or  special  judgment.  If  the  plaintiff  recovers  judgoncnt  on  such 
writ  of  entry,  no  execution  for  possession  shall  issue  thereon,  but  execution  may 
issue  for  costs  of  stut. 

§  129. — A  defendant  whose  individual  property  is  attached  in  an  action  against 
several  defendants  may  dissolve  such  attachment,  or  any  part  thereof,  in  any  of 
the  modes  provided  in  the  seven  preceding  sections.  But  the  bond  to  dissolve  such 
attachment  shall  be  so  conditioned  as  to  apply  only  to  a  judgment  recovered  against 
Buch  defendant  alone  or  jointly. 


"Writs  and  service  of  process — Pages  923,  924,  sees.  14-17,  26,  29-34. 
Shares  in  corporations— Pages  5G7,  508,  sees.  24,  28,  30;  p.  1006,  sees.  47, 60;  pp. 
929,  930,  sees.  71,  73.     Subsequent  attachment  of — Page  1005,  sec.  44. 


MICHIGAN.  561 

Attachment  of  property  on  which  there  is  a  mechanic's  lien — Pages  1099,  1100, 
sees.  30-35.     On  liens  against  vessels — Page  1104,  sec.  17. 

Conveying  attached  property  without  notice — Page  1147,  sec.  68. 

Amendment,  effect  on  subsequent  attaching  creditors — Page  974,  sec.  85. 

Execution  suspended  by  prior  attachment — Page  lOOG,  sees.  52,  53. 

Waste  of  attached  proi^erty— Page  1039,  sec.  12.  As  to  costs,  see  Stats.  1883, 
p.  373. 

In  replevin — Page  10G4,  sees.  14-17.  and  24. 


MICHIGAN. 

[Howell's  Annotated  Statutes,  1883.] 


ATTACHMENTS   AGAINST  FOREIGN  CORPOEATIONS. 

§  7086  (3292)  (5519).--Sec.  1.  Whenever  an  action  shall  be  commenced  by  at- 
tachment against  a  foreign  corporation,  and  proceedings  by  garnishment  shall  also 
be  commenced  in  the  same  action,  if  it  shall  appear  on  the  return  of  the  •writ  of 
attachment  that  a  copy  thereof,  and  also  copies  of  all  garnishee  summons  issued  in 
said  action,  ha\e  been  j^ersonally  served  on  any  officer,  member,  clerk,  or  agent  of 
such  foreign  corporation  within  this  state,  the  same  proceedings  may  be  thereupon 
had  in  said  action  against  said  corporation,  and  in  the  same  manner,  as  iipon  the 
return  of  a  summons  personally  served  in  actions  against  natural  persons;  and  in 
all  cases  of  proceedings  by  garnishment  against  corporations,  whether  forei;gn  or 
domestic,  service  of  any  process  in  the  manner  above  provided  for  in  case  of  for- 
eigia  corporations,  shall  have  like  force  and  effect  as  personal  service  upon  natural 
persons. 

§  7087  (.3923)  (5.520)._— Sec.  2.  The  rights  and  liabilities  of  garnishees  in  such 
cases,  and  the  proceedings  against  them,  shall  be  the  same  in  all  respects  as  is  pro- 
vided by  law  in  other  cases  of  garnishment. 

PROCEEDINGS   AGAINST   DEBTORS   BY  ATTACHMENT. 

§  7986  (4742)  (0397).— Section  1.  Any  creditor  shall  be  entitled  to  proceed  by 
attachment  against  his  debtor  in  the  circuit  court  of  the  county  in  which  the  cred- 
itor or  the  debtor  (or  in  case  of  joint  debtors,  either  of  them)  shall  reside,  if  the 
debtor  have  property  subject  to  attachment  in  said  county;  and  in  case  the  debtor 
has  no  {property  in  said  county,  or  is  a  non-resident  of  this  state,  then  in  the  circuit 
court  of  any  county  where  the  property  of  the  debtor  subject  to  attachment  may 
be  found,  in  the  cases,  upon  the  conditions,  and  in  the  manner  provided  in  this 
chapter. 

§  7987  (4743)  (0398).— Sec.  2.  Before  any  such  writ  of  attachment  shall  be  exe- 
cuted, the  plaintiff,  or  some  jjerson  in  his  behalf,  shall  make  and  annex  thereto 
an  affidavit,  stating  that  the  defendant  therein  is  indebted  to  the  j^laintiff,  and 
specifying  the  amount  of  such  indebtedness  as  near  as  may  be,  over  and  above  all 
legal  set-offs,  and  that  the  same  is  due  upon  contract,  exjiress  or  imj^lied,  or  upon 
judgment,  and  containing  a  further  statement  that  the  deponent  knows,  or  has 
good  reason  to  believe,  either: 

First.  That  the  defendant  has  absconded,  or  is  about  to  abscond  from  this  state, 
or  that  he  is  concealed  therein,  to  the  injury  of  his  creditors;  or, 

Hecond.  That  the  defendant  has  assigned,  disjjosed  of  or  concealed,  or  is  about 
to  assign,  dispose  of  or  conceal  any  of  his  property  with  intent  to  defraud  his 
creditors;  or. 

Third.  That  the  defendant  has  removed,  or  is  about  to  remove  any  of  his  prop- 
erty out  of  this  state,  with  intent  to  defrauel  his  creditors;  or, 

Fourth.  That  he  has  fraudulently  contracted  the  debt,  or  incurred  the  obliga- 
tion respecting  which  the  suit  is  brought;  or. 

Fifth.  That  the  defendant  is  not  a  resident  of  this  state,  and  has  not  resided 
therein  for  three  months  immediately  ijreceding  the  time  of  making  such  affi- 
davit; or, 

II  Attachmest— 11. 


562  MICHIGAN, 

Sixth.  That  the  defendant  is  a  foreign  corporation:  Provided,  that  such  affidavit 
shall  not  be  deemed  insufficient  by  reason  of  the  intervention  of  a  day  between  the 
date  of  the  jiirat  to  such  affidavit,  and  the  issuing  of  the  writ,  and  that  when  the 
person  making  such  affidavit  shall  reside  in  any  other  county  in  this  state,  than 
that  in  which  the  wi'it  of  attachment  is  to  issue,  one  day's  time  for  every  thirty 
miles  travel,  by  the  usual  post  route,  from  the  residence  of  such  person  to  the  place 
from  which  such  writ  shall  issue,  shall  be  allowed  between  the  date  of  such  jurat 
and  the  issuing  of  such  writ. 

§  7988  (4744)  (6399).— Sec.  X  Such  writ  of  attachment  shaU  be  indorsed  in 
the  same  cases,  and  in  the  same  manner,  as  original  writs  are  required  by  law  to 
be  indorsed,  by  some  person  as  security  for  costs,  and  with  the  like  effect. 

§  7989  (4745)  J6400).— Sec.  4.  No  writ  of  attachment  shall  be  issued  under  the 
provisions  of  this  chapter,  unless  the  amount  stateil  in  such  affidavit  as  due  to  the 
plaintiff,  over  and  above  all  legal  set-offs,  shall  exceed  the  sum  of  one  hundred 
dollars. 

§  7990  (4746)  (6401).— Sec.  5.  Such  ^vrit  shall  command  the  sheriff  or  other 
officer  to  whom  it  may  be  directed,  to  attach  so  much  of  the  lands,  tenements, 
goods,  chattels,  moneys,  and  effects  of  the  defendant  not  exempt  from  execution, 
wheresoever  the  same  may  be  found  within  the  county,  as  will  be  sufficient  to  sat- 
isfy the  plaintiff's  demand,  and  safely  keep  the  same  to  satisfy  any  judgment  that 
may  be  recovered  by  the  plaintiff  in  such  attachment,  and  also  to  summon  the 
defendant,  if  to  be  found  within  his  county,  or  in  any  county  where  he  may  have 
seized  property  under  and  by  virtue  of  the  provisions  of  section  six  of  said  chap- 
ter 114,  of  the  Revised  Statutes  of  1846,  as  amended,  to  appear  before  the  circuit 
court,  at  the  time  and  place  to  be  specified  in  such  writ,  to  answer  the  plaintiff; 
and  such  writ  shall  be  tested  and  made  returnable  in  the  same  manner  as  other 
writs  issuing  out  of  the  circuit  court. 

§  7991  (4747)  (6402).— Sec.  6.  The  sheriff  or  other  officer  to  whom  such  -m-it  shall 
be  directed,  shall  execute  the  same  on  or  before  the  return  day  thereof,  by  seizing  so 
much  of  the  lands,  [tenements],  goods,  chattels,  moneys  and  effects  of  the  defend- 
ant, wheresoever  the  same  may  be  found  in  his  county,  as  will  be  sufficient  to  sat- 
isfy the  demand  and  costs,  and  by  making  an  inventory  thereof,  and  serving  a 
copy  of  such  attachment  and  inventory,  certified  by  him,  upon  the  defendant,  if 
he  can  be  found  in  his  county;  and  in  case  any  property  of  the  defendant  is  found 
and  seized  in  said  county,  but  not  sufficient  to  satisfy  the  demand  and  costs,  then 
said  officer  shall  seize  other  property  of  the  defendant,  subject  to  attachment,  suf- 
ficient with  that  seized  within  his  county  to  satisfy  the  demand  and  costs,  when- 
ever the  same  may  be  found  within  the  state,  and  shall  serve  a  copy  of  such  at- 
tachment and  inventory  upon  said  defendant,  if  found  within  either  county  where 
property  has  been  seized  under  this  writ:  Provided,  however,  that  in  case  of  several 
attachments  of  the  same  property,  it  shall  be  necessary  to  make  an  inventory, 
and  serve  a  copy  thereof  only  with  the  first. 

§  7992  (4748)  (6403).— Sec.  7.  The  property  so  attached  shall  be  appraised  by 
two  disinterested  freeholders  of  the  county  in  which  said  property  was  seized,  who 
shall  first  be  sworn  by  the  officer  to  make  a  true  appraisement  thereof,  which  ap- 
praisement shall  be  signed  by  such  freeholders  and  returned  with  the  wi-it:  Pro- 
vided, that  in  case  of  several  attachments  of  the  same  property,  one  inventory  and 
appraisal  shall  be  sufficient,  and  the  subsequent  attachment  shall  be  served  on  the 
property  as  in  the  hands  of  the  officer,  by  reference  to  the  inventorj'  and  appraisal 
under  the  first  writ. 

§  7993  (4749)  (6404).— Sec.  8.  In  attaching  real  estate,  or  any  right  or  interest 
in  land,  it  shall  not  be  necessary  that  the  officer  should  enter  upon  the  land  or  be 
within  view  of  it;  and  in  attaching  shares  of  stock,  or  the  interest  of  a  stockholder 
in  any  corporation  organized  imder  the  laws  of  this  state,  the  levy  shall  be  made 
in  the  manner  provided  by  law  for  the  seizure  of  such  property  on  execution. 

§  7994  (4750)  (6405).— Sec.  9.  Such  attachment  shall  bind  the  goods  and  chat- 
tels so  attached  from  the  time  they  were  attached. 

§  7995  (4751)  (6406).— Sec.  10.  Real  estate  attached  shall  be  bound,  and  the 
attachment  shall  be  a  lien  thereon  from  the  time  when  a  certified  copy  of  the  at- 
tachment, with  a  description  of  the  real  estate  attached,  shall  be  deposited  in  the 
office  of  tte  register  of  deeds  in  the  county  where  the  real  estate  attached  is  situated. 

§  7996  (4752)  (6407).— Sec.  11.  Each  register  of  deeds  shall  note  on  every  such 
certified  copy  the  day,  hour,  and  minute  when  he  receives  it;  and  shall  also  enter 
in  a  book  to  be  kept  by  him  for  that  purpose,  the  names  of  the  parties  in  such  writ, 


MICHIGAN.  563 

Jesig:nating  who  is  plaintiff  and  who  defendant,  the  time  when  the  land  was 
a^itached,  and  the  time  when  such  copy  was  deposited. 

§  7997  (4753)  (6408).— Sec.  12.  The  register  of  deeds  shall  he  entitled  to  a  fee 
of  twenty-fi^'c  cents  for  his  services  in  each  case,  to  be  paid  on  the  delivery  of  such 
copy;  and  the  appraisers  of  the  property  attached  pursuant  to  the  provisions  of 
this  chapter,  shall  each  be  entitled  to  receive  one  dollar  for  each  day,  and  fifty 
cents  for  each  half  day  necessarily  occupied  by  hun  in  the  appraisal,  and  six  cents 
per  mile  for  traveling  one  way,  to  be  paid  on  the  rendition  of  the  services;  which 
fees  and  compensation  may  be  taxed  for  the  plaintiff  in  his  bill  of  costs. 

§  7998  (4754)  (6409).— Sec.  13.  The  property  attached  shall  remain  in  the 
hands  of  the  officer  serving  the  attachment,  unless  the  defendant,  or  any  other 
person  in  whose  possession  such  property  may  have  been  found,  shall,  before 
judgment  in  such  suit,  deliver  to  the  officer  a  bond,  executed  to  him  by  two  or  more 
Bufhcient  sureties,  being  freeholders  within  this  State,  either  with  or  without  such 
defendant,  or  other  person,  to  the  satisfaction  of  such  officer,  as  hereinafter  pro- 
vided. 

§  7999  (4755)  (6410).— Sec.  14.  Such  bond  may  be  in  a  penalty  double  the 
amoimt  specified  in  the  affidavit  annexed  to  the  writ,  as  due  to  the  plaintiff,  con- 
ditioned for  the  payment  of  any  judgment  which  may  be  recovered  by  the  plaint- 
iff in  the  suit  commenced  by  such  attachment,  within  sixty  days  after  such  judg- 
ment shall  be  rendered;  or  in  a  penalty  double  the  ai^praised  value  of  the  prop- 
ert J',  and  conditioned  that  such  property  shall  be  produced  to  satisfy  any  execution 
that  may  be  issued  on  any  judgment  to  be  recovered  by  the  i>laintiff  uj^on  such 
attachment. 

§  8000  (4756)  (6411).— Sec.  15.  _  Upon  the  execution  and  delivery  of  such  bond 
as  provided  in  the  preceding  sections,  the  i^roperty  attached  shaU  be  delivered  by 
the  officer  to  the  defendant  or  person  in  whose  possession  the  same  shall  have  been 
found,  but  the  suit  shall  not  be  discontinued  or  in  any  way  affected  by  such 
delivery. 

§  8001  (4757)  (6412).— Sec._16.  In  case  of  a  failure  to  perform  the  condition  of 
any  such  bond,  the  plaintiff  in  such  attachment  may  prosecute  a  suit  thereon  for 
his  benefit,  in  the  name  of  such  officer,  or  his  successor  in  office,  or  may  take  an 
assignment  of  such  bond  and  sue  thereon  in  his  own  name;  and  shall  be  entitled  to 
recover  thereon  the  full  value  of  the  property  attached,  or  so  much  thereof  as  shall 
be  sufficient  to  satisfy  the  judgment  rendered  on  such  attachment,  with  interest 
and  costs. 

§  8002  (4758)  (6413).— Sec.  17.  Upon  the  return  of  such  writ,  if  it  appear  that 
a  copy  thereof  has  been  personally  served  on  the  defendants,  or  either  of  them,  or 
if  either  of  the  defendants  shall  appear  in  the  suit,  the  same  proceedings  may  be 
thereupon  had  in  such  suit,  in  all  resiDects,  as  upon  the  return  of  an  original  writ 
of  summons  personally  served,  in  a  suit  commenced  by  such  summons. 

§  8003  (4759)  (6414).— Sec.  18.  If  it  appear  by  the  return  of  such  writ  that  any 
property  has  been  attached  thereon,  and  that  neither  of  the  defendants  could  be 
found,  the  plaintiff  shall,  within  thirty  days  after  such  return,  unless  the  defend- 
ants or  some  of  them  shall  sooner  appear  in  the  siiit,  cause  a  notice  to  be  published 
in  some  newspaper  printed  in  the  county  for  which  said  circuit  coiu-t  is  held,  and 
if  no  newspaper  is  printed  in  said  county,  then  in  some  newspaper  printed  in  the 
judicial  circiiit  in  which  such  wi-it  shall  be  returned,  which  notice  shall  state  the 
names  of  the  parties,  the  time  when,  from  what  court,  and  for  what  sum  the  writ 
was  issued,  and  when  the  same  was  returnable,  and  shall  be  published  for  six  suc- 
cessive weeks,  and  if  any  plaintiff  shall  neglect  to  cause  such  notice  to  be  so  pub- 
lished, as  required  in  this  section,  the  attachment  shall  be  dismissed  with  costs. 

§  8004  (4760)  (6415).— Sec.  19.  If  any  bond  shall  have  been  given  to  the  sheriff 
or  other  officer  serving  the  wTit,  as  hereinbefore  pro\'ided,  he  shall  state  the  fact  in 
his  return  to  the  attachment,  and  return  and  file  such  bond  therewith;  and  if  any 
such  bond  shall  be  given  after  the  return  of  the  writ,  and  before  judgment,  such 
sheriff  or  other  officer  shall  immediately  cause  the  same  to  be  filed  in  the  clerk's 
office  to  which  such  writ  was  returned,  and  give  notice  thereof  to  the  plaintiff  or 
his  attorney. 

§  8005  (4761)  (6416).— Sec.  20.  If  a  copy  of  the  attachment  shall  not  have  been 
served  upon  any  of  the  defendants,  and  none  of  them  shall  appear  in  the  suit,  the 
plaintiff,  on  filing  an  affidavit  of  the  publication  of  the  notice  hereinbefore  required 
for  six  successive  weeks,  may  file  his  declaration  in  the  suit,  and  proceed  therein 
as  if  a  copy  of  such  attachment  had  been  served  upon  the  defendants. 


664  MICHIGAN. 

§  8000  (4762)  (6417).— Sec.  21.  If  anv  defendant  not  served  with  a  copy  of  the 
attacbment,  shall  appear  at  any  time  before  judgment,  he  may  be  admitted  by 
the  court  to  defend  the  suit,  upon  such  terms  as  the  court  may  deem  reasonable. 

§  8007  (4763)  (6418.)— Sec.  22.  When  a  copy  of  the  attachment  shall  have  been 
personally  served  on  the  defendant,  or  such  defendant  shall  have  appeared  in  the 
suit,  judgment  shall  be  rendered,  and  execution  shall  issue  thereon,  in  the  same 
manner  and  with  the  like  effect  as  in  a  suit  commenced  by  summons,  in  which  the 
summons  shall  have  been  returned  personally  served,  except  that  by  virtue  of  such 
execution,  the  officer  to  whom  the  same  shall  be  directed  and  delivered  may  sell 
any  property  attached  in  the  suit,  and  remaining  in  the  hands  of  the  officer  who 
served  the  attachment,  wherever  the  same  may  be  in  this  state. 

§  8008  (4764)  (6419).— Sec.  23.  When  a  copy  of  the  attachment  shall  not  have 
been  served,  and  the  defendant  shall  not  have  appeared  in  the  suit,  judgment  shall 
be  rendered,  and  execution  may  issue  in  the  same  form  as  if  such  copy  had  been 
personally  served,  but  .such  judgment  shall  not  be  conclusive  against  the  defend- 
ant, and  such  execution  shall  only  authorize  the  officer  to  whom  it  is  directed  to 
sell  the  x^roperty  attached  in  such  suit. 

§  8009  (4765)  (6420).— Sec.  24.  In  the  case  specified  in  the  last  section,  the 
attorney  issuing  the  execution  shall  indorse  thereon  or  annex  thereto  a  description 
of  the  property  so  attached,  with  a  direction  to  the  officer  to  sell  -the  same,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  execution,  and  not  to  levy  the 
same  or  any  part  thereof  upon  any  other  property. 

§  8010  (4766)  (6421).— Sec.  25.  If  a  bond  shall  have  been  given  to  the  officer, 
conditioned  for  the  payment  of  the  judgment,  as  provided  in  the  thirteenth  and 
fourteenth  sections  of  this  chapter,  and  judgment  be  rendered  in  favor  of  the 
plaintiff,  it  shall  not  be  necessary  to  issue  any  execution  upon  such  judgment,  to 
entitle  such  plaintiff  to  sue  on  such  bond. 

§  8011  (4707)  (6422).— Sec.  26.  When  any  of  the  property  taken  in  attachment 
shall  consist  of  animals  or  perishable  property,  the  court,  or  any  judge  thereof, 
may  make  an  order,  directing  such  property  to  be  sold,  and  the  money  arising  from 
such  sale  to  be  brought  into  court,  to  abide  the  order  of  such  court. 

§  8012  (4708)  (6423). — Sec.  27.  Upon  such  order  for  a  sale  being  made,  the  offi- 
cer having  such  property  shall  advertise  and  sell  the  same,  in  the  same  manner 
that  personal  property  is  required  to  be  advertised  and  sold  on  execution,  andshaU 
deposit  the  proceeds  thereof  with  the  clerk  to  whose  office  the  attachment  is  re- 
quired to  be  returned. 

§  8013  (4769)  (6424).— Sec.  28.  If  the  plaintiff  recover  judgment,  the  coiirt  may 
order  such  money  to  be  paid  to  the  plaintiff  thereon;  but  if  judgment  be  rendered 
against  the  plaintiff,  or  the  suit  be  discontinued,  or  the  attachment  dismissed, 
the  court  shall  order  such  money  to  be  paid  to  the  defendant,  or  person  entitled 
thereto. 

§  8014  (4770)  (6425).— Sec.  29.  The  practice  in  actions  commenced  by  attach- 
ment shall  be  the  same  in  all  respects  as  in  personal  actions  commenced  by  sum- 
mons, as  near  as  may  be,  except  as  otherwise  i^rovided  by  law. 

§  8015  (4771)  (6426). — Sec.  30.  When  two  or  more  persons  are  jointly  indebted 
as  joint  obligors,  partners,  or  otherwise,  and  an  affidavit  shall  be  made,  as  pro- 
vided in  section  two  of  this  chapter,  so  as  to  bring  one  or  more  of  such  joint 
debtors  within  its  provisions,  and  amenable  to  the  i^rocess  of  attachment,  then  the 
■wi-it  of  attachment  shall  issue  against  the  i^roperty  and  effects  of  such  as  are  so 
brought  within  the  provisions  of  said  section;  and  the  officer  shall  be  also  directed 
in  said  ^\Tit  to  summon  all  such  joint  debtors  as  may  be  named  in  the  affidavit  at- 
tached thereto,  to  answer  to  the  said  action  as  in  other  cases  of  attachment. 

§  8016  (4772)  (6427).— Sec.  31.  If  any  estate  which  shall  be  attached  shall  be 
subject  to  a  mortgage,  or  other  incumbrance,  and  the  mortgage  shall  be  redeemed, 
or  the  incumbrance  removed  before  the  sale  on  the  execution,  such  estate  may  be 
sold  on  such  execution  in  the  same  manner  and  with  the  same  effect  as  if  the  mort- 
gage or  other  incumbrance  had  never  existed. 

discharge  of  satisfied  attachments  from  record. 

§  8017  (Section  1). — Sec.  32.  Any  attachment  on  real  estate  shall  also  be  dis- 
charged upon  the  record  thereof  by  the  register  of  deeds  in  whose  custody  it  shall 
be,  whenever  there  shall  be  presented  to  him  a  certificate  executed  by  the  plaint- 
iff, his  personal  representatives  or  assigns,  duly  acknowledged,  specifying  that  such 


MICHIGAN.  665 

attachment  has  been  removed  or  otherwise  satisfied  or  discharged;  or  upon  the 
presentation  to  such  register  of  deeds  of  the  certificate  of  the  circuit  court  for  the 
county,  signed  by  the  county  clerk  of  said  court  and  under  seal  thereof,  certifying 
that  it  has  been  made  to  appear  to  said  coui-t  that  said  attachment  has  been  duly 
removed  or  otherwise  settled. 

ATTACHMENTS    IN    SUITS    PREVIOUSLY    COMMENCED    BY    SUMMONS    OR    DECLARATION. 

§8018(0432). — Sec.  1.  In  any  action  founded  on  contract,  expressed  or  im- 
plied, which  has  been  or  may  hereafter  be  commenced,  by  summons  or  declaration, 
in  any  court  of  record  in  this  state,  the  plaintiff  may,  at  any  time  before  judgment 
shall  be  rendered  therein,  proceed  by  attachment,  in  the  same  action,  against  the 
property  of  the  defendant,  in  the  manner  hereinafter  provided. 

§  8019  (G433). — Sec.  2.  At  any  time  after  said  summons  or  declaration  shall 
have  been  personally  served  on  the  defendant  or  defendants,  or  either  of  them,  the 
plaintiiT,  or  some  person  in  his  behalf,  may  make  and  file  with  the  clerk  of  the 
court  in  which  such  action  shall  have  been  commenced,  an  affidavit,  which  affidavit 
shall  conform  to  and  be  governed  by  the  provisions  of  section  two,  of  chapter  one 
hundred  and  fourteen,  of  the  Revised  Statutes  of  eighteen  hundred  and  forty-six, 
and  being  chapter  one  hundred  and  forty  of  the  Compiled  Laws. 

§  8020  (6434). — Sec.  3.  Upon  filing  such  affidavit,  said  clerk  shall  issue  a  writ 
of  attachment,  which  writ  shall  recite  the  commencement  of  said  action,  and  shall 
command  the  sheriff  to  attach  so  much  of  the  lands,  tenements,  goods,  chattels, 
moneys  and  effects  of  the  defendant  not  exempt  from  execution,  wherever  the  same 
may  be  found  in  the  county,  as  shall  be  sufficient  to  satisfy  the  plaintiff's  demand, 
and  safely  keep  the  same,  to  satisfy  any  judgment  that  may  be  recovered  by  the 
plaintiff  in  such  action;  and  such  writ  of  attachment  shall  he  made  returnable  in 
not  less  than  fourteen  nor  more  than  thirty  days  from  the  issuing  thereof. 

§  8021  (6435). — Sec.  4.  The  subsequent  proceedings  by  virtue  of  such  attach- 
ment, so  far  as  the  same  are  not  herein  provided  for,  shall  be  the  same  as  provided 
in  said  chapter  one  hundred  and  fourteen,  of  the  Revised  Statutes  of  eighteen  hun- 
dred and  foi'ty-six,  avid  the  amendments  thereto,  so  far  as  the  same  are  applicable, 
except  that  no  additional  declaration  shall  be  made  necessary  by  such  writ  of  at- 
tachment; and  any  judgment  recovered  in  the  action,  in  favor  of  the  plaintiff, 
shall  be  conclusive  against  the  defendant,  who  shall  have  been  personally  served 
with  the  original  summons  or  declaration;  and  the  execution  issued  thereon  shall 
authorize  the  levying  upon  and  selling  of  any  property  of  the  defendant  so  per- 
sonally served,  not  exempt  from  execution,  as  well  as  the  i:)roperty  attached, 
whether  such  attachment  shall  have  been  personally  served  or  not. 

§  8022  (6436). — Sec.  5.  The  defendant  shall  have  the  same  right  to  procure  said 
attachment  to  be  dissolved,  and  in  the  same  manner  as  is  now  provided  by  law  for 
the  dissolution  of  attachments;  but  the  dissolution  of  such  attachment  shall  have 
no  other  effect  on  the  proceedings  than  to  release  the  property  attached. 

§  8023  (6437). — Sec.  6.  The  bond  to  be  given  by  the  defendant  for  the  discharge 
of  the  property  so  attached  shall  be  in  a  j^enalty  at  least  double  the  amount  speci- 
fied in  the  affidavit  filed  in  the  cause,  as  due  to  the  plaintiff,  and  shall  be  condi- 
tioned for  the  payment  of  any  judgment  which  may  be  recovered  by  the  plaintiff 
in  the  cause  in  which  such  ^v^it  of  attachment  is  issued,  within  sixty  days  after 
such  judgment  shall  be  rendered;  or  in  a  jienalty  double  the  appraised  value  of  the 
property  attached,  and  conditioned  that  such  property  shall  be  produced  to  satisfy 
any  execution  that  may  be  issued,  on  any  judgment  to  be  recovered  by  the  [ilaintiff 
in  said  cause. 

§  8023a  (6438). — Sec.  7.  The  issuing  of  said  writ  of  attachment,  and  the  pro- 
ceedings under  and  by  virtue  of  the  same,  shall  in  no  manner  stay  the  proceedings 
commenced  by  the  original  summons  or  declaration,  but  the  defendant  may,  aside 
from  the  proceedings  made  necessary  by  such  attachment,  proceed  in  the  cause  in 
the  same  manner  as  though  no  attachment  had  been  issued. 

COLLECTION  OP   DAMAGE  FOR  TRESPASS,   ETC.,    ON  LANDS  BY  ATTACHMENT. 

§  8024  (Sec.  1). — In  all  cases  where  a  party  has  a  right  of  action  for  the  taking 
of  timber  or  other  trespass  on  lands,  or  for  any  injury  to  lands,  whether  direct  or 
consequential,  it  shall  be  lawful  for  the  party  having  such  right  of  action  to  waive 
the  tort  and  bring  assumpsit  therefor. 

§  8025  (Sec.  2). — When  tort  is  waived,  as  provided  in  the  preceding  section,  the 
jjlaintiff  may  commence  his  suit  1  ly  attachment  against  the  property  of  the  defend- 
ant, as  in  other  cases,  and  his  affidavit  for  such  attachment  shall  state  the  amount 


566  MICHIGAN. 

due  him  as  near  as  may  be,  and  the  fact  that  the  damages  are  unliquidated  shall 
not  prevent  the  bringing  and  maiataioing  of  such  writ. 

ATTACHMENT  IX  TORT  AGAINST  NOX-RESIDEXT  DEFEXDAXT3,  CAERTIXG  OX  BUSINESS 

IX   THIS   STATE. 

§  802oa  (Sec.  1). — Actions  of  tort  mar  be  commenced  in  courts  of  record  within 
this  state,  by  writ  of  attachment  against  non-residents  where  the  cause  of  action 
has  arisen,  or  hereafter  may  arise,  in  this  state.  Such  writ  shall  be  in  the  same 
form  as  in  attachment  suits  on  contract,  and  the  proceedings  shaU.  be  the  same  aa 
in  actions  of  contract  commenced  by  attachment,  except  as  is  herein  provided  to 
the  contrary. 

§  80256  (Sec.  2). — An  aflBdavit  shall  be  annesed  to  said  writ,  ftdly  describing 
the  cause  of  action;  also  that  the  defendant  is  a  non-resident;  that  the  cause  of  ac- 
tion arose  in  this  state,  and  that  the  defendant  is  carrying  on  business,  or  is  the 
owner  of  j)roperty  within  the  state,  and  no  other  or  further  affidavit  shall  be 
required. 

§  S025c  (Sec.  3). — ^Before  any  property  shall  be  attached  on  said  writ,  an  order 
must  be  indorsed  thereon  by  a  circuit  court  commissioner  of  the  comity  where  the 
suit  is  commenced,  or  by  any  circuit  or  supreme  judge,  prescribing  the  amount  of 
property  that  may  be  attached,  which  order  shall  be  substantially  as  follows :  ' '  Let 
the  property  of  the  defendant  in  the  within  writ  be  attached  to  the  amount  of 

dollars."    Such  order  shall  be  signed  by  the  officer  allowing  the  same.    Such 

property  may  be  released  in  the  manner  prescribed  in  the  geheral  law  relating  to 
attachment  suits  on  contract. 

§  802od  (Sec.  4).— The  same  proceedings  shall  be  had  in  serving  and  executing 
such  writ  of  attachment  as  is  now  had  in  attachment  proceedings  in  assimapsit,  and 
service  upon  defendant  shall  be  in  all  respects  as  prescribed  in  chapter  two  hun- 
dred and  one  of  the  ComfiUed  Laws  of  eighteen  hundred  and  seventy-one,  and  the 
acts  amendatory  thereto.  But  if  the  defendant  has  a  manager,  agent,  superin- 
tendent, or  other  principal  representative  -within  the  county  where  the  suit  is 
brought,  there  shall  be  served  upon  such  manager,  agent,  superintendent,  or  other 
principal  representative,  the  same  papers  that  are  now  required  to  be  served  upon 
defendants  in  attachment  suits  in  addition  thereto. 

DISSOLUTIOX'OF  ATTACHMEXTS. 

§  8026  (4773)  (6428). — Sec.  1.  In  aU  cases  where  a  writ  of  attachment  has  been 
or  shall  be  issued  and  served  imder  the  provisions  of  law,  it  shall  be  lawful  for  any 
defendant  whose  property  may  be  attached  by  virtue  of  such  writ,  to  apply  to  the 
judge  of  the  circuit  court,  or  to  the  circuit  court  commissioner  of  the  county  where 
such  Writ  issued,  for  a  dissolution  of  such  attachment;  which  application  shall  be 
in  writing,  and  shall  contain  the  reasons  for  such  application. 

§  8027  (4774)  (6429).— Sec.  2.  Upon  the  presentation  of  such  application,  the 
judge  or  said  commissioner  shall  issue  a  citation  to  the  plaintiff  in  attachment,  re- 
quiring him  to  show  cause  on  a  day  and  at  a  time  and  place  in  said  citation  to  be 
named,  before  the  said  judge  or  commissioner,  why  the  said  attachment  should  not 
be  dissolved,  and  the  property  be  restored  to  the  defendant  in  attachment. 

§  8028  (4775)  (6430).— Sec.  3.  The  citation  shall  be  served^  three  days  at  least 
before  the  return  day  thereof,  by  reading  it  to  the  plaintiff  in  attachment  (or  to 
either  of  them,  if  there  be  more  than  one),  if  found  within  the  county,  and  if  not, 
then  the  same  may  be  served  upon  the  agent  or  attorney  of  the  plaintiff,  by  the 
sheriff,  either  of  his  deputies,  or  any  constable  or  other  person  authorized  by  such 
judge  or  commissioner;  and  on  the  retiu-n  day  thereof,  or  at  such  other  day  there- 
after as  the  judge  or  commissioner  shall  appoint  for  that  purpose,  he  shall  proceed 
to  hear  the  proofs  and  allegations  of  the  parties;  and  if  said  judge  or  commissioner 
shall  be  satisfied  that  such  plaintiff  had  not  a  good  and  legal  cause  for  suing  out 
such  writ,  the  said  judge  or  commissioner  may  order  such  attachment  to  be  dis- 
solved, and  the  property  attached  to  be  restored  to  the  defendant,  and  may,  at  hia 
discretion,  require  the  said  defendant  to  enter  his  appearance  to  the  plaintiff's  ac- 
tion prior  to  the  dissolution  of  such  attachment. 

§  8029  (4776)  (6431).- Sec.  4.  The  judge  or  commissioner  shall  have  fidl  power 
to  issue  subpoena,s,  and,  if  necessary,  attachments,  to  compel  the  attendance  of 
witnesses  to  testify  in  such  cases,  and  may,  in  his  discretion,  require  the  party 
moving  for  such  dissolution  to  give  security  for  the  costs  of  such  proceedings,  and 
may  order  the  costs  of  such  proceedings  to  be  paid  by  the  party  against  whom  the 


MICHIGAN.  567 

decision  shall  be  in  the  premises,  and  may  issue  execution  therefor,  returnable  in 
sixty  days  from  its  date. 

APPEALS. 

§  8030  (Sec.  .'>). — Either  party  conceiving  himself  aggrieved  by  the  determina- 
tion, order,  or  judgment  of  any  circuit  court  commissioner  under  the  provisions  of 
this  act,  may  appeal  therefrom  to  the  circuit  court  of  the  same  county,  and  a  re- 
turn may  be  compelled,  and  the  same  proceedings  shall  be  thereupon  had  as  near 
as  may  be  and  with  the  like  effect  as  in  cases  of  appeal  from  judgments  rendered 
before  justices  of  the  peace,  and  costs  shall  be  awarded  and  collected  in  the  circuit 
court  in  the  same  manner,  and  on  perfecting  the  said  appeal  said  attachment  pro- 
ceedings and  the  levy  thereunder  shall  be  held  in  the  same  condition  and  of  the 
same  force  and  validity  as  when  said  x»roceedings  for  a  dissolution  of  said  attach- 
ment were  commenced,  and  the  officer  executing  said  attachment  shall  continue  to 
have  the  same  rights  and  duties  imder  said  attachment  as  regards  the  property  at- 
tached as  if  said  proceedings  had  never  been  commenced;  and  any  order  or  judg- 
ment made  by  such  commissioner  dissolving  said  attachment  shall  have  no  force  or 
effect  to  release  the  attached  property  from  the  attachment  levy  until  the  same 
shaU  be  aflirmed  by  the  circuit  court,  if  appealed  from,  and  no  such  order  shall  be 
issued  in  any  case  by  any  commissioner  until  the  expiration  of  five  days  after  the 
making  of  the  same;  and  the  said  circuit  court  shall  also  have  full  power  and  juris- 
diction over  said  cause  and  proceedings  to  hear  and  determine  the  same  and  render 
judgment  therein,  as  if  the  said  proceedings  had  been  originally  commenced  before 
the  said  circuit  judge  thereof.  And  either  party  to  said  proceedings  in  said  appeal 
shall,  if  he  so  elect,  be  entitled  to  have  the  issue  in  said  proceedings  tried  by  a  jury 
as  in  ordinary  suits  in  said  court. 

PEOCEEDLN'GS  AG.UyST  GAEJTISHEES  IX  COURTS  OF  KECOED. 

§  80.j8  (64G5). — Sec.  1.  In  all  personal  actions  arising  upon  contract,  express  or 
implied,  brought  in  the  several  circuit  comls  or  municipal  courts  of  civil  juris- 
diction, whether  commenced  by  declaration,  writs  of  capias,  summons  or  attach- 
ment; and  in  all  cases  where  there  remains  any  sum  unpaid  upon  any  judgment 
or  decree  rendered  in  any  of  the  ;.^veral  courts  hereinbefore  mentioned,  if  the 
plaintiff,  his  agent  or  attorney,  shall  file  with  the  clerk  of  the  court  at  the  time  of 
or  after  the  commencement  of  suit,  or  at  any  time  after  rendition  of  judgment  or 
decree,  an  affidavit  stating  that  he  has  good  reason  to  believe,  and  does  believe, 
that  any  fierson  (naming  him)  has  property,  money,  goods,  chattels,  credits  or 
effects  in  his  hands  or  under  his  custody  or  control,  belonging  to  the  defendant,  or 
that  such  person  is  indebted  to  the  defendant,  whether  such  indebtedness  is  due 
or  not,  and  that  the  principal  defendant  (naming  him)  is  justly  indebted  to  the 
plaintiff  on  such  contract,  judgment  or  decree  in  a  given  amount,  over  and  above 
aU  legal  set-oifs;  and  that  the  f)Iaintiff  or  affiant  is  justly  apprehensive  of  the  loss 
of  the  same,  unless  a  writ  of  garnishment  issue  to  the  aforesaid  person;  a  writ  of 
garnishment  shall  be  issued,  sealed  and  tested  in  the  same  manner  as  writs  of  sum- 
mons, and  dii-ected  to  the  sheriff,  reciting  the  commencement  of  said  suit,  or  the 
rendition  of  judgment  or  decree  against  the  principal  defendant,  and  the  tQing  of 
the  affidavit  aforesaid;  and  thereuiDon  conmianding  the  said  sheriff  to  warn  and 
summon  such  person  to  appear  before  said  court  on  a  day  named,  not  less  than 
fourteen  days  from  the  date  of  issuing  the  same,  to  make  disclosure  in  writing 
under  his  oath,  to  be  filed  with  the  clerk  of  said  court,  touching  his  liability  as 
garnishee  of  the  princii^al  defendant  (naming him),  as  charged  in  said  affiua^"it,  and 
thenceforth  paj'  no  money  and  deliver  no  xjrojjerty  to  the  principal  defendant,  and 
of  said  writ  make  due  return. 

§  8059  (13406). — Sec.  2.  From  the  time  of  the  service  of  such  writ,  the  gar- 
nishee shall  be  deemed  liable  to  the  plaintiff  to  the  amount  of  i^roperty,  money, 
goods,  chattels  and  effects  in  his  control  lielonging  to  the  principal  defendant,  or 
of  any  debts  due  or  to  become  due  from  such  garnishee  to  the  principal  defendant, 
or  of  any  judgment  or  decree  in  favor  of  the  latter  against  the  former,  and  for  all 
property,  personal  and  real,  money,  goods,  chattels,  evidences  of  debt  or  effects  of 
the  principal  defendant,  which  such  garnishee  defendant  holds  by  a  conveyance, 
transfer  or  title  that  is  void  as  to  creditors  of  the  principal  defendant;  and  such 
garnishee  shall  also  be  liable  on  any  contingent  right  or  claim  against  him  in  favor 
of  the  jjrincipal  defendant. 

§  8060  (6407).— Sec.  3.  Unless  the  plaintiff  in  such  action  shall  within  ten  days 
after  notice  is  served  upon  him  or  his  attorney,  of  the  filing  of  the  garnishee's  dis- 
closure with  the  clerk  of  the  court,  file  special  interrogatories  thereto,  or  file  a 
demand  for  an  examination  of  such  garnishee  before  the  judge  of  the  court  or  a 
circuit  court  commissioner,  such  disclosure  shall  be  deemed  sufficient  unless  the 


568  MICHIGAN. 

^udge  of  the  coiirt  on  application  and  sho'udng  shall  extend  the  time  for  filing  suet 
interrogatories  or  demand  for  such  examination. 

§  80C1  (6468). — Sec.  4.  If  special  interrogatories  shall  be  filed  to  such  disclosure 
as  aforesaid,  the  garnishee  or  his  attoi-ney  in  such  action  shall  V)e  served  with  a 
copy  of  the  same,  together  with  a  notice  from  the  plaintiff  or  his  attorney  that 
such  garnishee  is  required  to  answer  such  interrogatories  in  writing  within  ten  days 
after  such  service;  said  garnishee  shall  answer  the  same  on  oath  and  file  such  answer 
with  the  clerk  of  said  court  within  said  ten  days :  Provided,  such  time  may  Ije  ex- 
tended on  application  and  showing  to  said  court.  If  such  jjlaintLff  shall  file  in  said 
cause  a  demand  for  the  examination  of  such  garnishee  before  said  judge  or  a  circuit 
court  commissioner,  and  shall  cause  a  copy  of  the  same  to  be  served  on  such  defend- 
ant, with  a  notice  from  the  plaintiff  or  his  attorney  requiring  such  garnishee  to 
appear  before  the  judge  or  a  circuit  court  commissioner,  at  a  time  and  f)lace  to  be 
named  in  such  notice,  not  less  than  three  nor  more  than  ten  days  after  service  of 
such  notice,  which  time  may  be  enlarged  by  the  judge  or  commissioner  on  special 
cause  shown,  and  submit  to  an  examination,  on  oath,  concerning  all  matters  of  his 
liabUitj-  as  such  garnishee  under  this  act,  which  copy  shall  be  served,  and  such 
service  proven,  when  required,  in  the  same  manner  as  in  cases  of  service  of  a 
declaration  in  suits  commenced  by  declaration.  Such  garnishee  defendant  shall 
appear  and  submit  to  such  examination  as  required  by  such  notice.  And  if  such 
garnishee  shall  fail  to  appear  for  examination  at  the  time  and  place  appointed  by 
such  notice,  or  if  such  garnishee  shall  fail  or  refuse  to  file  his  answers  to  such 
written  interrogatories  as  required  by  this  act,  or  if  such  answers  are  not  full  and 
responsive  to  such  written  interrogatories,  the  judge  of  the  court,  or  a  circuit  court 
commissioner,  upon  application  of  the  plaintiff,  shall  make  an  order  that  the  gar- 
nishee do  appear  before  him  and  submit  to  such  examination  at  such  a  time  and 
place  to  be  named  in  such  order.  The  testimony  or  statement  made  on  such  per- 
sonal examination  shall  be  reduced  to  ■writing  by  the  commissioner  or  judge,  and 
signed  by  the  garnishee,  and  said  commissioner  or  said  judge  shall  report  and  file 
the  same  with  the  clerk  of  the  court,  and  the  same,  and  the  answer  to  the  written 
interrogatories,  in  cases  where  ■\\Titten  interrogatories  are  filed  and  answered  as 
above,  shall  be  deemed  part  of  the  disclosure  of  such  garnishee. 

§  80G2  (G4G9).  — Sec.  5.  If  such  garnishee  does  not  appear  and  file  his  disclosure 
with  the  clerk  of  the  court  aforesaid,  on  or  before  the  retiu-n  day  of  such  ^vrit,  or 
if  the  time  for  so  doing  be  enlarged,  as  hereinafter  provided,  then  at  the  expiration 
of  such  enlarged  period,  or  if  special  interrogatories  shall  be  filed  and  served  as 
provided  by  this  act,  and  such  garnishee  does  not  file  his  answers  thereto  as  re- 
quired by  the  notice  thereon,  or  if  demand  for  his  examination  before  a  judge  or 
[a]  circuit  court  commissioner  be  filed  and  a  copy  served  as  provided  by  this  act, 
and  such  garnishee  does  not  appear  and  submit  to  an  examination,  as  required  by 
the  notice  indorsed  thereon,  the  default  of  such  garnishee  for  want  of  appearance 
and  disclosvire,  or  want  of  answers  to  such  special  inteiTogatories,  or  for  want  of 
appearance  and  submission  to  such  examination,  may  be  entered  in  the  cause,  and 
made  absolute  as  in  other  personal  actions,  and  in  case  of  final  judgment  against 
the  priacix^al  defendant,  judgment  may  be  rendered  and  execution  issued  against 
such  garnishee,  his  goods  and  chattels,  lands  and  tenements,  for  such  amount  as 
the  plaintiff  shall  recover  against  the  principal  defendant.  Such  defaults  may  be 
set  aside  for  any  cause  for  which  default  for  want  of  appearance  and  plea  may 
be  set  aside  upon  such  terms  as  the  court  may  impose. 

§  80C3  (G470). — Sec.  6.  A  circuit  court  commissioner  of  the  county  where  such 
proceedings  shall  be  commenced,  or  the  circuit  judge,  may,  for  proper  cause  sho^wn, 
by  afiidavit  of  any  credible  person,  make  an  order  enlarging  the  time  for  the 
garnishee  to  file  his  disclosure,  and  such  order  shall  lie  filed  with  the  clerk  of  the 
court,  and'a  copy  thereof  served  on  the  plaintiff  in  the  action,  or  his  attorney; 
but  such  time  shall  not  be  enlarged  more  than  three  times,  nor  enlarged  except  by 
assent,  beyond  the  day  previous  to  the  fii'st  day  of  the  term  at  which  the  suit 
against  the  debtor  may  be  properly  returned  noticed  for  triah 

Sec.  7.— Repealed,  1883,  p.  398,  Act  231. 

8034  (G471). — Sec.  8.  If  upon  the  disclosure,  or  the  trial  of  the  statutory  issue 
hereinafter  provided  for,  it  shall  appear  that  the  garnishee  had  in  his  jjossession  at 
the  time  of  the  service  of  the  process  upon  him,  or  thereafter,  any  promissory  note, 
bill  of  exchange,  order,  receipt,  bond,  or  other  written  promise  for  the  payment 
of  money,  or  the  delivery  of  jiroperty  belonging  to  the  principal  defendant,  the 
garnishee  shall  deliver  the  same  to  the  commissioner  or  other  person  ajspointed  by 
the  judge  or  commissioner  as  a  receiver,  if  by  him  or  the  court  so  ordered;  and  it 
shall  be  his  duty,  under  the  direction  of  the  court,  to  collect  and  apply  the  pro- 
ceeds upon  any  execution  in  favor  of  the  plaintiff  and  against  the  garnishee,  and 
to  pay  him  the  surplus,  if  any. 


MICHIGAN.  569 

§  80G5  (6472).— Sec.  9.  If  it  shall  appear,  as  aforesaid,  that  the  garnishee  had 
in  his  possession,  as  aforesaid,  any  personal  property  of  the  principal  defendant, 
and  that  the  same  is  subject  to  any  pledge,  lien  or  mortgage,  and  at  the  time  of  the 
disclosure  has  not  been  sold  by  the  garnishee,  the  same  shall  be  delivered  by  the 
garnishee  to  the  commissioner  or  receiver,  if  the  commissioner  or  judge  so  order, 
to  be  by  him  disposed  of  under  the  direction  of  the  com-t,  if  a  greater  amount 
than  the  incumbrance  can  be  obtained  therefor,  and  after  paying  the  amount  of 
such  incumbrance,  to  apply  the  balance  as  aforesaid,  or  the  plaintiff  may  be 
allowed  by  like  order  to  pay  or  tender  the  amount  due  the  garnishee. 

80G6  (G473). — Sec.  10.  If,  in  either  of  the  cases  specified  in  the  two  preceding 
sections,  the  garnishee  shall  refuse  to  comply  with  the  order  of  the  judge  or  com- 
missioner for  delivering,  such  garnishee  shall  be  held  liable  for  the  amount  of  the 
note,  order,  choses  in  action,  or  personal  property,  upon  the  report  of  the  commis- 
sioner of  such  refusal  and  amount,  and  judgment  shall  be  rendered  and  execution 
issued  accordingly,  as  uiaon  default. 

§  8067  (G474). — Sec.  11.  In  either  of  said  cases  the  judge,  commissioner,  or 
receiver,  shall  add  to  his  report  a  statement  of  an3'  order  made  by  him,  and  the 
delivering  to  him  of  any  property  or  thing,  with  a  descrii:tion  and  valuation 
thereof,  to  be  ascertained  by  appraisement  or  inquiry  upon  uath,  or  in  such  mode 
as  the  commissioner  or  judge  shall  direct,  to  his  satisfaction. 

§  80G8  (G475).— Sec.  12.  The  affidavit  for  the  writ  of  garnishment  shall  be 
held  and  considered  as  a  declaration  by  the  idaintiff  in  trover  a;;,;ainst  the  garnishee 
as  defendant,  where  the  garnishee  is  chargeable  for  proi^erty,  and  for  money  had 
and  received,  when  he  is  chargeable  upon  indebtedness  against  the  garnishee,  and 
upon  the  filing  of  the  garnishee  disclosure,  or  upon  filing  of  the  answers  to  such 
written  interrogatories  in  cases  where  the  same  are  reqliired  and  filed,  or  r,pon  the 
filing  of  the  report  of  the  testimony  or  statement  made  bj^  sucli  garnishee  on  such 
personal  examination  in  cases  where  such  examination  is  had,  the  matter  of  such 
affidavit  shall  be  considered  as  denied,  except  so  far  as  the  same  is  admitted  by 
such  disclosure,  answers  to  interrogatories  or  report,  which  admissions  shall  have 
the  effect  of  admissions  in  a  plea,  and  also  shall  be  prima  facie  evidence  of  the 
matters  therein  admitted.  And  thereupon  a  statutory  issue  shall  be  deemed 
framed  for  the  trial  of  the  question  of  the  garnishee's  liability  to  the  plaintiff. 
And  judgment  may  be  rendered  against  such  garnishee  defendant,  as  iijion  declara- 
tion and  plea,  or  [on]  plaintiff's  motion  to  the  court  at  any  time  after  the  final 
judgment  against  the  defendant  in  the  princi]:)al  cause,  without  further  notice  to 
such  garnishee:  Provided,  hotvever,  if  such  plaintiff  or  such  garnishee  defendant 
shall  within  ten  days  after  filing  of  such  disclosure,  answer,  or  statement,  file  with 
the  clerk  of  such  court  a  demand  for  trial  of  the  cause,  said  cause  shall  stand  for 
trial  in  the  manner  provided  by  this  act. 

§  80G9  (0476). — Sec.  13.  In  case  judgment  shall  have  been  rendered  in  favor  of 
the  plaintiff  in  the  i^rincipal  action,  before  the  commencement  of  such  garnishee 
proceedings,  or  before  the  framing  of  such  statutory  issue,  such  issue  shall  be  brought 
to  trial  in  the  same  manner  as  a  personal  action;  but  in  case  judgment  shall  not 
have  been  so  recovered  in  the  pa-incipal  action,  then  such  statutory  issue  shall  stand 
for  trial  at  the  term  at  which  the  issue  against  the  i:irincipal  defendant  shall  be  tried 
and  finally  disijosed  of;  and  if  the  latter  issue  be  determined  against  the  plaintiff 
at  any  time  thereafter,  ui^on  motion  of  the  garnishee,  judgment  shall  be  entered  in 
his  favor  ujion  the  statutory  issue,  and  for  costs  against  the  plaintiff,  reciting  the 
framing  of  such  issue,  and  the  judgment  in  favor  of  the  principal  defendant. 

§  8070  (G477). — Sec.  14.  If  the  jilaintiff  obtain  judgment  against  the  pi-incipal 
defendant,  in  the  circuit  court,  and  the  latter  does  not,  within  two  days  thereafter, 
serve  upon  the  garnishee  notice  of  motion  for  new  trial,  or  of  his  intention  to  re- 
move the  cause  to  the  supreme  court,  the  statutory  issue  shall  stand  for  trial  at 
the  term  of  the  court  on  the  docket  containing  the  suit  in  the  order  of  formation  of 
such  issue:  Provided,  that  in  case  the  suit  be  on  the  court  docket,  and  a  jury  be 
demanded  by  the  garnishee,  the  court  shall  appoint  a  day  for  the  jury  trial  of  such 
cases,  unless  the  jury  be  dismissed,  and  in  that  event,  the  case  shall  stand  on  the 
jury  docket  of  the  next  term:  Provided,  further,  that  continuances  may  be  applied 
for  and  granted,  as  in  ordinary  cases,  and  that  the  plaintiff  shall  cause  the  clerk  to 
place  the  case  on  the  docket  in  its  proper  position,  and  shall  give  notice  thereof  in 
■writing  to  the  garnishee  at  the  same  time. 

§  8071  (G478). — Sec.  15.  Upon  the  trial,  the  report  or  any  other  competent  evi- 
dence supporting  or  controverting  it  may  be  offered  by  the  plaintiff,  and  the  gar- 
nishee may  offer  any  evidence  not  controverting  the  disclosm-e,  or  in  the  discretion 
of  the  coiirt  he  may  be  allowed  to  show  errors  and  mista-kes  in  his  disclosure,  and 


570  MICHIGAN, 

may  also  stow  the  amount  of  the  judgment  and   costs  against  the  principal 
defendant. 

§8072(6479). — Sec.  16.  If  by  the  verdict  the  garnishee  be  found  liable,  aa 
such,  for  an  amount  equal  to  or  greater  than  the  judgment  and  costs  against  the 
principal  defendant,  judgment  shall  i^ass  only  for  the  latter  amount;  in  other  cases 
it  shall  pass  for  the  amount  of  liability  ascertained  by  the  verdict. 

§  8073  (6480). — Sec.  17.  If  on  such  trial  judgment  shall  be  rendered  against 
the  garnishee  for  a  greater  amount,  or  for  other  property  than  he  would  have  been 
chargeable  for  on  his  disclosure,  it  shall  carry  full  costs,  otherwise  the  garnishee 
shall  recover  costs;  execution  shall  issue  as  in  ordinary  cases. 

§  8074  (6481). — Sec.  18.  Whenever,  in  case  of  recovery  by  the  plaintiff  against 
the  principal  defendant,  he  shall  have  removed  the  same  to  the  supreme  court,  and 
the  judgment  shall  have  been  aflormed,  the  statutory  issue,  in  garnishment,  shall 
be  tried  at  the  end  of  the  next  court,  or  at  the  term  to  which  the  cause  may  be 
continued,  or  at  the  end  of  that  which  was  in  process  of  disposal  at  the  time  of  the 
affirmance. 

§  8075  (G482).— Sec.  19.  When  the  garnishee  shall  be  found  indebted  to  the 
princij^al  defendant,  and  the  time  of  payment  shall  not  have  arrived,  no  judgment 
shall  pass  until  after  the  time  of  maturity,  which  shaU  be  named  in  the  finding  or 
verdict. 

§  8076  (6483). — Sec.  20.  When  the  garnishee  shall  be  chargeable,  by  reason  of 
any  goods  or  chattels,  other  than  monej',  which  he  holds  or  is  bound  to  deliver  to 
the  principal  defendant,  not  subject  to  any  lien,  judgment  shall  be  rendered  and 
execution  issued  against  the  garnishee  for  so  much  thereof  as  may  be  necessary  to 
satisfy  the  same,  and  he  shall  make  delivery  to  the  officer,  who  shall  sell  and  ajjply 
and  account  for  the  proceeds  as  usual  in  ordinary  executions. 

§  8077  (6484).—  Sec.  21.  If  the  garnishee  be  found  to  be  under  contract  for  the 
delivery  of  any  specific  article  to  the  principal  defendant,  or  to  make  payment 
therein,  judgment  shall  be  rendered  and  execution  issued  against  the  garnishee  for 
so  much  thereof  as  shall  be  necessary  to  satisfy  such  execution,  which  articles  shall 
be  paid  and  delivered  to  the  plaintiff  according  to  the  contract. 

§  8078  (6486). — Sec.  22.  When  such  specific  goods  were  to  be  delivered  to  the 
principal  defendant  at  a  certain  time  and  place,  the  garnishee  shall  not  be  com- 
pelled, by  reason  of  the  garnishment,  to  deliver  at  any  other  time  and  place,  but 
may  deliver  as  provided  for  in  the  contract,  imless  previously  adjudged  liable  aa 
garnishee. 

§  8079  (6486).— Sec.  23.  The  plaintiff  shall  be  deemed  the  agent  of  the  prmci- 
pal  defendant  for  the  purpose  of  recovering  the  goods,  chattels  and  articles  men- 
tioned in  the  two  preceding  sections,  and  may  levy  his  execution  thereon  to  the 
amount  of  his  debt  and  costs;  and  if  no  division  of  such  goods,  chattels  or  articles 
can  lie  made,  the  whole  may  be  sold;  and  the  property  unsold,  and  the  overplus  of 
the  i^roceeds  of  the  property  sold,  shall  be  delivered  by  the  officer  to  the  x>rincipal 
defendant  on  demand. 

■  §  8080  (6487). — Sec.  24.  If  any  person  adjudged  liable  as  garnishee  for  any 
goods,  chattels,  or  other  property  whatever,  shall  refuse  to  expose  the  same  so  that 
the  plaintiff  may  levy  his  execution  thereon,  the  comi}  shall,  on  return  thereof 
made  by  the  officer,  grant  a  rule  ui^on  such  garnishee  to  show  cause  why  execution 
should  not  issue  against  said  garnishee,  his  ovm  goods  and  estate;  and  upon  due 
service  of  such  rule,  and  no  sufficient  cause  sho\\Ti  to  the  contrary,  execution  shall 
be  issued  against  him  for  such  sum  as  the  court  may  adjudge. 

§  8081  (6488). — Sec.  25.  All  bills  of,  exchange  and  promissory  notes  in  the 
hands  of  the  garnishee  at  the  time  of  the  service  of  the  writ  of  garnishment  shall 
be  deemed  effects  under  the  pro^asions  of  this  act;  and  if  it  shall  appear,  by  the 
disclosure,  that  the  garnishee  at  such  time,  or  thereafter,  and  prior  to  the  disclos- 
m-e,  is  indebted  to  the  principal  defendant  by  such  bUl  or  negotiable  promis- 
sory note,  and  made  payable  in  this  state,  or  the  parties  to  which,  at  the 
time  of  making  the  same,  resided  in  this  state,  the  judge  or  commissioner  may  issue 
a  citation  requiring  the  principal  defendant  to  appear  before  him  and  answer  on 
oath  all  interrogatories  respecting  the  possession,  transfer,  or  other  disposition  of 
said  bills  of  exchange  or  i^romissory  notes;  and  such  order  may  contain  the  name 
of  any  other  person  supposed  to  claim  an  interest  in  such  paper,  so  that  he  may 
ajipear  and  show  that  the  same  was  transferred  to  him  in  good  faith,  and  for  an 
adequate  consideration,  before  the  sei-vice  of  the  writ  of  garnishment;  and  such 
citation  shall  be  of  ten  days,  and  may  be  served  by  any  person  at  least  five  days 


MICHIGAN,  571 

prior  to  the  return  day,  and  returned  by  affidavit,  and  sTiall  be  annexed  to  tho 
commissioner's  re^jort. 

§  8082  (6489).— Sec.  26.  The  parties  cited  shall  be  examined  in  like  manner  as 
the  garnishee,  and  if  it  shall  not  appear  that  the  note  or  bill  was  so  transferred, 
the  maker  or  acceptor  shall  be  charged  as  garnishee,  and  the  payment  of  the  judg- 
ment rendered  against  him  shall  Ije  a  discharge  from  the  note,  or  such  part  thereof 
as  is  equal  to  the  amount  so  paid  by  him,  together  with  all  costs  taxed  in  his  favor. 

§  8083  (6-190). — Sec.  27.  If  the  principal  defendant,  or  other  party  cited,  shall 
refuse  to  appear  upon  such  citation,  upon  the  filing  of  the  report,  he  may  be  pro- 
ceeded against  as  for  a  contempt,  or  brought  before  the  court  on  a  bench  warrant, 
and  fined  in  the  discretion  of  the  court,  and  held  in  custody  until  disclosure  to  the 
court,  the  same  to  be  reduced  to  writing  by  the  clerk  and  attached  to  the  report. 

§  8084  (6491). — Sec.  28.  No  disclosure,  as  answer  of  any  person,  or  any  other 
proceeding  under  the  provisions  of  this  act,  shall  be  used  in  evidence  upon  any 
criminal  prosecution  against  such  person,  exce^jt  upon  a  prosecution  of  the  gar- 
nishee for  perjury  in  making  his  disclosure. 

§  8085  (6492). — Sec._  29.  If  any  person  shall  claim  any  property  as  aforesaid,  iu 
the  hands  of  any  garnishee,  by  assignment  from  the  principal  defendant,  or  other- 
wise, the  coiu't  may  permit  or  cause  him  to  appear  and  maintain  his  right  in  such 
mode  as  the  court  shall  dii-ect.  The  testimony  of  the  principal  defendant,  or  of 
any  competent  witness,  may  be  taken  in  such  manner  as  the  court  shall  direct,  and 
attached  to  the  disclosure,  and  the  com-t  may  award  such  costs  between  such  com- 
plainant, the  plaintiff  and  the  garnishee  as  justice  and  equity  may  require. 

§  8086  (6493). — Sec.  30.  Any  corporation,  domestic  or  foreign,  other  than  mu- 
nicipal, may  be  garnished  under  this  act.  If  domestic,  the  writ  of  garnishment 
may  be  served  upon  the  president,  secretary,  cashier  or  treasurer,  sui:)erintendent 
or  general  agent,  or  such  other  officer  as  the  corporation  may  apj^oint,  or  the  court 
direct;  and  the  officer  served,  and  such  other  officer  as  the  court  or  commissioner 
may  order,  Ijy  rule  or  citation,  as  in  cases  hereinbefore  provided  for,  shall  make 
disclosure,  and  the  same  shaU  be  considered  the  answer  of  the  corporation. 

§  8087  (6494). — Sec.  31.  If  the  plaintiff,  in  addition  to  the  allegations  herein- ' 
before  required  to  be  contained  in  the  affidavit  for  the  writ  of  garnishment,  shall 
set  forth  in  such  affidavit  that  the  principal  defendant  is  a  non-resident,  or  a  for- 
eign corporation  created  in  any  jurisdiction  (naming  it),  the  principal  writ  (or 
declaration)  and  affidavit  may  be  filed  of  the  day  of  issue,  and  the  vrvit  of  garnish- 
ment may  be  served  as  in  ordinary  cases;  and  within  sixty  days  after  such  service 
the  plaintiff  shall  cause  to  be  delivered  to  such  non-resident  defendant,  or  to  the 
president,  secretary,  cashier  or  treasurer  of  such  foreign  corporation,  residing  out 
of  this  state,  or  upon  any  officer,  clerk  or  agent,  residing  or  to  be  found  within  this 
state,  a  true  copy  of  the  principal  writ  (or  declaration),  affidavit  and  writ  of  gar- 
nishment, with  return  of  service  thereon,  and  with  a  wi-itten  or  printed  notice  at- 
tached, signed  by  the  plaintiff  or  his  attorney,  and  stating  that  said  non-resident 
defendant  or  foreign  corx^oration  is  notified  to  appear  and  defend  within  thirty 
days  after  such  service,  or  default  will  be  entered,  and  judgment  taken;  and  iqjon 
filing  an  affidavit  of  such  service,  further  proceedings  to  judgment  may  be  had,  as 
in  ordinary  personal  actions.  • 

§  8088  (6495). — Sec.  32.  Whenever  the  action  shall  be  commenced  by  writ  of 
attachment  against  a  non-resident  defendant  or  foreign  corporation,  and  a  writ  of 
garnishment  shall  issue,  the  same  proceedings  shall  be  had  in  respect  to  personal 
Bervice  upon  the  principal  defendant,  as  are  s]Decified  in  the  i^revious  section. 

§  8089  (6496). — Sec.  33.  If  the  garnishee  is  about  to  leave  the  state  before  the 
return  day  of  the  writ,  or  can  show  other  good  cause,  he  may  apply  to  the  judge  or 
commissioner  to  take  his  disclosure,  on  oath,  at  any  time  previous  to  the  return 
day,  to  be  fixed  by  the  judge  or  commissioner,  upon  notice  to  the  plaintiff:  Fro- 
vidcd,  the  judge  or  commissioner  shall  be  satisfied  of  the  necessity  and  justice  to 
both  i^arties  of  such  a  coiu-se. 

§  8090  (6497). — Sec.  34.  When  the  garnishee  shall  be  adjudged  liable  as  such, 
except  when  it  is  otherwise  specially  provided,  judgment  shall  be  rendered  and 
execution  issued  against  such  garnishee,  his  ovm  goods  and  estate,  for  the  account 
[amount]  of  the  judgment  and  costs  against  the  principal  defendant,  if  the  gar- 
nishee's liability  shall  be  for  so  much,  otherwise  for  the  amount  thereof. 

§  8091  (6498). — Sec.  35.  If  any  person  garnished  shall  have  in  his  possession 
any  of  the  property  aforesaid  of  the  principal  defendant,  which  he  holds  by  a  con- 
veyance or  title  that  is  void  as  to  the  creditors  of  the  defendant,  he  may  be  adjudged 


572  MICHIGAN. 

liable  as  garnishee  on  amoiint  [account]  of  sucli  property,  althoufrli  the  principal 
defendant  could  not  have  maintained  an  action  therefor  against  him. 

§  8092  (6499). — Sec.  36.  Two  or  more  persons,  severally  liable,  may  be  garnished 
in  the  same  action,  and  their  disclosures  and  all  other  proceedinjr s  shall  be  several, 
and  judgment  shall  be  rendered  for  such  sum  as  the  court  shall  order,  for  cr 
against  each  severally,  and  execution  may  issue  accordingly. 

§  8093  (6500).  Sec.  37.  Execution  may  be  issiied  by  the  com-t  against  the 
principal  defendant  for  any  balance  due  the  plaintiff,  on  his  judgment  against  such 
defendant,  b.cj'ond  the  amount  for  which  the  garnishee  or  garnishees  rhall  be  found 
liable;  and  further  execution  may  be  issued  from  time  to  time,  against  .'-uch  defend- 
ant, cr  any  garnishee,  as  the  court  naay  order,  until  the  satisfaction  of  the  judg- 
ment is  full. 

§  8094  (0501). — Sec.  38.  The  judgment  against  any  person,  as  a  c'arnishee,  shall 
acquit  and  discharge  such  garnishee,  his  executor  or  administrators,  from  all  de- 
mands by  the  iirincipal  defendant,  his  executors  or  administrators,  for  all  such 
moneys  or  ijroperty,  as  aforesaid,  paid  or  delivered  by  the  garnishee  by  force  of 
such  payment;  and  if  any  garnishee  shall  be  sued  therefor,  or  for  anything  done  by 
virtue  of  the  provisions  of  this  chapter,  he  may,  under  the  general  issue,  give  the 
special  matter  in  evidence. 

■  §  8095  (G502). — Sec.  39.  If  auy  person  named  in  the  affidavit  for  the  v.-rit  of 
garnishment  shall  be  stated  to  reside  out  of  the  county  in  which  the  suit  in  gar- 
nishment i.i  brought,  the  vrrit  of  garnishment  or  any  execution  against  the  gar- 
nishee shall  be  directed  to  the  sheriff  of  any  county  in  this  state  in  which  such 
person  may  reside;  such  sheriff  shall  serve  said  writ  in  the  manner  that  Avrits  of 
garnishment  are  required  to  be  served  in  other  cases,  and  shall  make  return  of  his 
doings  to  the  clerk  of  the  county  from  which  the  writ  was  issued. 

§  8090  (6503). — Sec.  40.  !No  jaerson  shall  be  adjudged  a  garnishee  in  either  of 
the  cases  following,  to  wit: 

First.  Ey  reason  of  any  money  or  thing  received  or  coUeeted  by  him  as  sheriff 
or  other  officer,  by  force  of  an  execution  or  other  legal  process,  in  favor  of  the  prin- 
•cipal  defendant. 

Second.  Hy  reason  of  any  money  in  his  hands  as  a  public  officer,  for  which  he 
is  accountable,  merely  as  such  officer,  to  the  principal  defendant. 

Third.  Kothing  in  this  act  contained  shall  be  applicable  to  any  indebtedness 
of  such  garnishee  to  the  principal  defendant,  for  the  personal  labor  of  such  defend- 
ant, or  his  family,  unless  such  indebtedness  exceed  the  sum  of  twenty-five  dollars, 
and  in  case  of  such  excess,  only  to  the  amoimt  of  such  excess. 

§  8097  (6504).  ^Sec.  41.  Every  garnishee  shall  be  allowed  to  deduct  from  the 
property  in  his  hands  all  his  demand  against  the  principal  defendant,  of  which  he 
could  have  availed  himself  if  he  had  not  been  garnished,  whether  by  set-off  at  the 
trial  or  upon  execution,  and  shall  be  liable  for  the  balance  only  after  adjustment 
of  mutual  demands:  Provided,  that  in  the  adjustment  no  claims  for  unlicfuidated 
damages  for  wrongs  or  injuries  shall  be  considered. 

§  8098  (C505). — Sec.  42.  If  the  garnishee  shall  appear  and  make  disclosure,  as 
before  provided,  he  shall  be  allowed  his  costs  for  trial  and  attendance  as  in  case  of 
a  witness,  and  such  fm'ther  sum  as  the  com-t  shall  think  reasonable  for  his  counsel 
fees  and  other  necessary  expenses;  and  in  case  he  shall  be  adjudged  liable,  the  same 
may  be  taxed  and  deducted  from  the  proiicrty  or  money  in  his  hands,  and  he  shall  be 
chargeable  only  for  the  balance;  and  if  the  garnishee  shall  be  discharged,  whether 
by  reason  of  his  having  no  money  or  jiroperty,  or  because  the  plaintiff  shall  not 
recover  judgment  against  the  principal  defendant,  or  for  any  cause,  his  said  costs 
and  charges  shall  be  paid  by  the  i^lauitiff,  and  the  garnishee  maj'  have  the  same 
taxed,  and  judgrment  and  execution  therefor. 

§  8099  (6506).— Sec.  43.  If  any  person  summoned  as  a  garnishee,  or  if  any  offi- 
cer, agent  or  other  person  who  shall  appear  and  answer  for  a  corporation  so  sum- 
moned, shall,  upon  his  disclosure  or  examination  on  oath,  knowingly  and  willfully 
answer  falsely,  he  shall,  out  of  his  own  goods  and  estate,  pay  to  the  plaintiff  in 
garnishment,  or  to  his  executors  and  administrators,  the  full  amount  due  on  the 
judgment  recovered  therein,  with  interest,  to  be  recovered  in  a  special  action  on 
the  case;  and  he  shall,  moreover,  on  conviction  thereof,  ui^on  indictment,  be  ad- 
judged goiilty  of  perjury. 

§8100  (0507). — Sec.  44.  A  failure  to  recover  judgment  against  the  principal 
defendant,  or  a  satisfaction  of  such  judgment,  in  any  manner,  shall  be  deemed  a 
discontinuance  of  all  proceedings  against  the  garnishee. 


MICHIGAN,  573 

§  8101  (6508).— Sec.  45.  Any  judgment  or  final  order  in  a  Buit  in  garnishment 
may  bu  set  asitle  or  removed  to  the  supreme  court,  in  like  manner  and  with  the 
same  effect  as  in  other  personal  actions. 

§  8102  1 0509). —Sec.  46.  Any  party  may  have  an  order  on  the  commissioner  for 
amendment  of  his  report,  or  fcr  a  further  report  upon  the  entry  of  a  motion  in  the 
special  motion  book,  the  filing  and  service  of  affidavit  and  like  notice,  as  in  other 
cases;  and  upon  like  proceedings  any  party  may  have  any  other  order  on  the  com- 
missioner to  which  he  may  be  entitled,  at  any  time  iu  the  progress  of  the  caaise. 

§  8103  (0510).— Sec.  47.  The  fees  of  the  sheriff  and  clerks  shall  be  the  same,  as 
near  as  may  be,  as  in  other  personal  actions  for  the  same  or  like  duties.  For  serv- 
ice of  the  memorandum,  the  sheriff  shall  receive  twenty-five  per  cent.  The  com- 
missioner's fees  shall  be  the  same  as  prescribed  in  section  5G43  of  the  compiled  laws, 
for  settling  interrogatories,  examining  "witnesses,  making  orders,  issuing  notices, 
administering  oaths,  and  decisions  on  habeas  corpus,  for  the  duties  respectively 
analogous  under  this  act. 

§  8104  (CjII). — Sec.  48.  The  supreme  court  m,iy,  in  its  discretion,  prescribe 
rules  of  i,ractice  under  this  act,  and  imtil  then  the  circuit  com-ts  may  make  rules 
therefor. 

§  8105  (G512). — Sec.  49.  The  principal  defendant  in  any  such  action,  wherein 
process  of  garnishment  shall  be  commenced,  may  at  any  time  after  the  service  of 
such  process,  and  previous  to  the  rendering  of  judgTuent  thereon,  file  with  the  clerk 
of  the  court  his  bond,  with  at  least  two  sufficient  sureties,  to  the  plaintiff  as  obligee, 
in  a  penal  sum  equal  to  double  the  amount  of  the  claim  of  the  jjlaintiff,  as  sworn  to 
in  the  affidavit  filed  for  the  vrsit  of  garnishment,  and  with  conditions  to  pay  any 
judgment  oljtained  against  the  defendant  or  defendants  in  such  action,  and  abide 
the  order  of  the  court  therein,  and  which  bond  and  the  sureties  thereof  shall  be 
previously  api^roved  by  the  judge  of  the  court,  or  circuit  court  commissioner,  on  a> 
notice  cf  at  Icart  tVv-enty-fctir  hours,  to  the  plaintiff  or  his  attorney,  of  the  time  and 
place  of  presenting  such  bond  for  approval;  and  if  neither  the  plaintiff  nor  his 
attorney  shall  reside  within  tWrty  miles  of  the  place  so  named,  such  notice  shall 
be  a  notice  of  at  least  two  day.-?,  and  at  least  one  day  shall  be  added  to  such  notice 
for  each  additional  thirty  miles  of  distance;  and  such  judge  or  commissioner  shall 
examine  the  defendant  and  sureties  on  oath  as  to  their  sufficiency  and  responsibility, 
and  may  take  other  evidence  in  relation  thereto,  in  his  discretion,  as  either  jjarty 
may  offer. 

On  filing  such  bond  so  approved,  with  the  clerk  of  the  court,  the  proceedings  of 
garnishment  shall  be  thereby  discontinued,  and  the  costs  thereof  shall  abide  the 
event  of  the  principal  suit;  and  if  the  plaintiff  shall  recover  judgment  against  the 
principal  defendant,  on  application  to  the  court,  execution  thereon  may  be  ordered 
to  issue  against  the  sureties  in  such  bond,  as  well  as  the  defendant.  Whenever 
any  proceedings  in  garnishment  shall  he  discontinued,  by  reason  of  the  filing  of 
such  bond,  as  above  provided,  the  clerk  of  the  court  shall  forthwith  notify  the 
attorney  for  the  plaintiff  in  such  suit,  of  the  filing  of  such  bond,  and  such  attorney 
shall,  within  twenty-four  hours  after  the  receifit  of  such  notice  from  the  clerk,  give 
notice  in  writing,  to  the  persons  against  whom  process  of  garnishment  shall  have 
been  issued,  that  the  proceedings  in  garnishment  in  such  suit  have  been  discon- 
tinued, which  notice  shall  be  served  upon  the  attorney  for  the  garnishee,  if  he  shall 
have  appeared  by  attorney,  otherwise  iipon  the  garnishee,  and  may  be  served  in 
the  same  manner  as  other  notices  are  requu-ed'to  be  served. 

§  8106. — Sec.  50.  In  all  cases  where  the  princij^al  defendant  does  not  appear  in 
the  cause  within  the  time  fixed  by  the  statute  and  rules  of  court  for  such  appear- 
ance, the  plaintiff  shall  proceed  and  perfect  his  judgment  against  such  principal 
defendant  as  soon  as  he  shall  be  entitled  thereto  under  the  rules  and  practice  of 
the  court,  and  in  default  thereof  such  court  may,  in  its  discretion,  on  motion  of  the 
garnishee  defendant,  or  any  one  interested  in  the  proceedings,  render  judgment 
discontinuing  such  garnishee  proceedings  with  costs  against  the  plaintiff. 


In  justices'  courts— Pages  1758,  1764,  sees.  6823,  6825,  6828,  6831, 6838-6856. 

Garnishment  in  justices'  courts — Pages  1995-2001,  sees.  8031-8057. 

Judgments  against  railroads  enforced  by — Page  881,  sec.  3428.  Against  non- 
resident trespassers  on  state  lands — Page  1392,  sec.  5323. 

Attachment  not  to  issue  against  estates  of  deceased  persons — Page  1542,  sec.  5902, 

Eight  of  purchasers  at  attachment  sale — Page  1583,  sec.  G108. 

Exemptions — Soldiers,  sec.  954;  fire  engines,  sec.  3089;  stock  in  corporations, 
sec.  393S;  library,  sec.  4421;  cemeteries,  sec.  4789;  life  insurance  policies,  sec.  6300: 
personal  i^roperty,  sees.  7686,  7715-lG;  sewing-machine,  sec.  7717;  homestead,  sec 
7721. 


674  MINNESOTA, 


MINNESOTA. 

[General  Statutes,  1878,  and  subsequent  Statutes.] 


ATTACHMENT. 


§  145  (Sec.  128). — In  an  action  for  the  recovery  of  money,  the  plaintiff,  at  the 
time  of  issuing  the  summons,  or  at  any  time  afterward,  may  have  the  property  of 
the  defendant  attached,  in  the  manner  hereinafter  prescribed,  as  security  for  the 
satisfaction  of  such  judgment  as  the  plaintiff  may  recover. 

§  146  (Sec.  129). — A  writ  of  attachment  shall  be  obtained  from  a  judge  of  the 
court  in  which  the  action  is  brought,  or  a  court  commissioner  of  the  county. 

§  147  (Sec.  130). — The  writ  of  attachment  shall  be  allowed  whenever  the  plaint- 
iff, his  agent  or  attorney,  shall  make  affidavit  that  a  cause  of  action  exists  against 
the  defendant,  specif jdng  the  amount  of  the  claim  and  the  ground  thereof;  and 
that  the  plaintiff's  debt  was  fraudulently  contracted;  or  that  the  defendant  is  either 
a  foreign  corporation  or  not  a  resident  of  this  state;  or  has  departed  therefrom,  as 
deponent  verily  believes,  with  intent  to  defraud  or  delay  his  creditors,  or  to  avoid 
the  service  of  a  summons;  or  keeps  himself  concealed  therein  •with  like  intent;  or 
has  assigned,  secreted  or  disposed  of,  or  is  about  to  assign,  secrete  or  dispose  of  his 
property  with  intent  to  delay  or  defraud  his  creditors:  Provided,  that  the  writ  of 
attachment  shall  not  be  allowed  in  actions  for  libel,  slander,  seduction,  breach  of 
promise  of  marriage,  false  imprisonment  or  assault  and  battery.  [As  amended 
1867,  chap.  66,  sec.  1.] 

§  148  (Sec.  131). — Before  issuing  the  writ,  the  judge  or  court  commissioner 
shall  require  a  bond  on  the  part  of  the  plaintiff,  with  sufficient  sureties,  conditioned 
that  if  the  defendant  recovers  judgment,  the  plaintiff  will  pay  all  costs  that  may 
be  awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of 
the  attaclmaent,  not  exceeding  the  penalty  of  the  bond,  which  shall  be  at  least  two 
hundred  and  fifty  dollars. 

§  149  (Sec.  132).— The  writ  shall  be  directed  to  the  sheriff  of  any  county  in 
which  the  property  of  such  defendant  may  be,  and  require  him  to  attach  and  siifely 
keep  all  the  property  of  such  defendant  within  his  county,  and  not  exempt  from 
execution,  or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff "s  demand, 
■with  costs  and  expenses,  the  amount  of  which  demand  shall  be  stated  in  conformity 
■with  the  complaint.  Several  writs  may  be  issued  at  the  same  time  to  the  sheriffs 
of  different  counties. 

§  150  (Sec.  133).  —All  goods  and  chattels,  real  and  personal,  all  property,  real, 
personal  and  mixed,  including  all  rights  and  shares  in  the  stock  of  any  corporation, 
all  money,  bills,  notes,  book-accounts,  debts,  credits,  and  all  other  evidences  of 
indebtedness,  belonging  to  the  defendant,  are  subject  to  attachment. 

§  151  (Sec.  134). — The  sheriff  to  whom  the  ■writ  is  directed  and  delivered  shall 
execute  the  same  without  delay,  as  follows: 

First.  Real  estate  shall  be  attached  by  the  officer  leaving  a  certified  copy  of  the 
writ,  and  of  his  return  of  such  attachment  thereon,  at  the  office  of  the  register  of 
deeds  of  the  county  in  which  such  real  estate  is  situated,  or,  if  there  is  no  register 
of  deeds,  with  the  clerk  of  the  district  court  of  the  county,  and  ser'vong  a  copy  of 
the  same  upon  the  defendant  in  the  action,  if  he  can  be  found  in  his  coimty,  ■with- 
out any  other  act*Dr  ceremony. 

Second.  Personal  property  capable  of  manual  delivery  to  the  sheriff  shall  be 
attached  by  taking  it  into  his  custody. 

Third.  When  an  attachment  is  made  of  articles  of  personal  estate  which,  by 
reason  of  their  bulk  or  other  cause,  cannot  be  immediately  removed,  a  certified 
copy  of  the  writ  and  of  the  return  of  the  attachment  may,  at  any  time  within  three 
daj's  thereafter,  be  deposited  in  the  office  of  the  to'wn  clerk  of  the  to-wn,  or  clerk 
or  recorder  of  the  village  or  city  in  which  the  attachment  is  made;  and  such  attach- 
ment shall  be  as  valid  and  effectual  as  if  the  articles  had  been  retained  in  the 
possession  and  custody  of  the  officer,     [Amended  Stats.  1881,  ^.  77.] 


MINNESOTA.  575 

Fourth.  The  clerk  shall  receive  and  file  all  such  copies,  notinj?  thereon  the  time 
when  received,  and  keep  them  safely  in  his  office,  and  also  enter  a  note  thereof,  in 
the  order  in  which  they  are  received,  in  books  hept  for  noting  mortgages  of  per- 
sonal property;  which  entry  shall  contain  the  names  of  the  parties  to  the  action, 
and  the  date  of  the  entry.  The  clerk's  fee  for  this  service  shall  he  twenty-five 
cents,  to  be  paid  by  the  officer,  and  included  in  his  charge  for  the  service  of  the 
writ. 

Fifth.  Other  personal  property  shall  be  attached  by  leaving  a  certified  copy  of 
the  writ,  and  a  notice  specifying  the  property  attached,  with  a  person  holding  the 
same;  or  if  a  debt,  with  the  debtor;  or  if  stock  or  interest  in  stock  of  a  corporation, 
with  the  p'resident  or  other  head  of  the  same,  or  the  secretary,  cashier,  or  managing 
agent  thereof. 

Si.cik.  The  sheriff  shall  serve  a  copy  of  the  writ  of  attachment,  and  inventory 
served  by  him,  upon  the  defendant,  if  he  can  be  found  within  the  county;  and  if 
he  is  a  resident  thereof,  but  cannot  be  found  therein,  the  said  sheriff  shall  leave 
such  copy  at  the  last  usual  place  of  abode  of  the  said  defendant. 

Seventh.  He  shall  make  a  full  inventory  of  the  property  attached,  and  return 
the  same  with  the  writ  of  attachment. 

§  152  (Sec.  135).^ — Whenever  the  sheriff,  with  a  writ  of  attachment  or  an  execu- 
tion against  the  defendant,  applies  to  any  person  mentioned  in  the  fifth  subdivision 
of  section  one  hundred  and  thirty-four,  for  the  purpose  of  attaching  or  levying  upon 
the  property  mentioned  therein,  such  person  shall  furnish  him  with  a  certificate 
designating  the  number  of  rights  or  shares  of  the  defendant  in  the  stock  of  the 
corporation,  with'  any  dividend  or  incumbrance  thereon,  on  the  amount  and  de- 
scription of  the  property,  held  by  such  corporation  or  j^erson  for  the  defendant,  or 
the  debt  owing  to  the  defendant.  If  such  person  refuses  to  do  so,  he  may  be  re- 
quired by  the  court  or  judge  to  attend  before  him  and  be  examined  on  oath  con- 
cerning the  same;  and  disobedience  to  the  order  may  be  punished  as  a  contempt. 

§  153  (Sec.  1.36). — If  any  of  the  property  attached  is  perishable,  the  sheriff  shall 
Bell  the  same,  in  the  manner  in  which  property  is  sold  on  execution.  He  may  also 
take  such  legal  proceedings,  either  in  his  own  name  or  in  the  name  of  the  defend- 
ant, as  are  necessary  to  collect  all  debts,  credits  and  effects  of  said  defendant, 
and  discontinue  the  same  at  such  times,  or  on  such  terms,  as  the  com-t  or  jutlge 
may  direct. 

§  154  (Sec.  137).— If  any  property  levied  upon  or  taken  by  a  sheriff,  by  virtue 
of  a  writ  of  execution,  attachment,  or  other  process,  is  claimed  by  any  other  jier- 
son  than  the  defendant  or  his  agent,  and  such  person,  his  agent  or  attorney,  makes 
affidavit  of  his  title  thereto,  or  right  to  the  jjossession  thereof,  stating  the  value 
thereof,  and  the  ground  of  such  title  or  right,  the  sheriff  may  release  such  levy  or 
taking,  imless  the  plaintiff,  on  demand,  indemnify  the  sheriff  against  such  claim, 
by  bond  executed  by  two  sufficient  sureties,  accompanied  by  their  affidr„vit  that 
they  are  each  worth  double  the  value  of  the  projjcrty  as  specified  in  the  affidavit  of 
the  claimant  of  such  jjroperty,  and  are  freeholders  and  residents  of  the  county;  and 
no  claim  to  such  property  by  any  other  person  than  the  defendant  or  his  agent 
shall  be  valid  against  the  sheriff  unless  so  made;  and  notwithstanding  such  claim, 
when  so  made,  he  may  retain  such  property  xuider  levy  a  reasonable  time  to  de- 
mand such  indemnity.     [As  amended  1877,  chap.  27,  sec.  1.] 

§  155  (Sec.  138). — If,  in  such  case,  the  person  claiming  the  ownership  of  such 
property  commences  an  action  against  the  sheriff  for  the  taking  thereof,  the  obli- 
gors in  the  bond  provided  for  in  the  preceding  section,  and  the  plaintiff  in  such 
execution,  attachment,  or  other  process,  shall,  on  motion  of  such  sheriff",  be  im- 
pleaded with  him  in  such  action.  When,  in  such  case,  a  judgment  is  rendered 
against  the  sheriff  and  his  co-defendants,  an  execution  shall  be  immediately  isSued 
thereon,  and  the  projierty  of  such  co-defendants  shall  be  first  exhausted  before  that 
of  the  sheriff  is  sold  to  satisfy  such  execution. 

§  150  (Sec.  139). — If  judgment  is  recovered  by  the  plaintiff  in  such  action,  the 
sheriff  shall  satisfy  the  same  out  of  the  property  attached  by  him,  if  it  is  sufficient 
for  that  purpose — 

First.  By  paying  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property 
Bold  by  him,  or  of  all  debts  or  credits  collected  by  him,  or  so  much  as  shall  be 
necessary  to  satisfy  the  judgment. 

Second.  If  any  balance  remains  due,  and  an  execution  has  been  issued  on  the 
judgment,  he  shall  sell,  under  the  execution,  so  much  of  the  attached  property,  real 
or  persona],  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose 
remains  in  his  hands;  and  in  case  of  the  sale  of  any  rights  or  shares  in  the  stock  of 
a  corporation,  the  sheriff  shall  execute  to  the  purchaser  a  certificate  of  the  sale, 
and  the  purchaser  shall  thereupon  have  all  the  rights  and  privileges  in  respect 
thereto  which  were  had  by  the  defendant. 


576  MINNESOTA. 

Third.  If  any  of  the  attached  property  belonging  to  the  defendant  has  passed 
out  of  the  hands  of  the  eherifF,  \vitliout  having  been  sold  or  converted  into  money, 
the  sheriff  shall  repossess  himself  of  the  same,  and  for  that  purpose  shall  have  all 
the  authority  ■which  he  had  to  seize  the  same  under  the  attachment;  and  any  per- 
Bpn  who  shall  willfully  conceal  or  withhold  such  property  from  the  sheriif  shall  be 
liable  to  double  damages,  at  the  suit  of  the  party  injured. 

§  157  (Sec.  140). — A  defendant  whose  property  has  been  attached  may,  at  any 
time  before  trial,  execute  to  the  plaintiff  a  b(jnd,  in  double  the  amount  claimed  in 
the  complaint,  or,  if  the  value  of  the  projaerty  attached  be  less  than  the  amount 
claimed,  then  in  double  the  value  of  the  jiroperty,  Anth  two  or  more  sureties,  to  be 
approved  by  the  officer  allowing  the  writ  of  attachment,  or  by  the  court  commis- 
sioner cf  the  county  in  which  the  defendant  resides,  conditioned  that  if  the  plaint- 
iff recover  judgment  in  the  action,  he  will  jtay  such  judgment,  or  an  amount  thereof 
equal  to  the  value  of  the  property  attached;  and  the  officer  approving  such  bond 
shall  make  an  order  discharging  such  attachment.  [As  amended  IStaS,  chap.  69, 
eec.  1.] 

§  158  (Sec.  141). — The  defendant  may,  at  any  time  before  the  time  for  answering 
expires,  or  at  any  time  thereafter  when  he  has  answered,  and  before  trial,  apply  to 
the  court,  on  notice,  to  vacate  the  writ  of  attachment.  If  the  motion  is  made  upon 
affidavits  on  the  part  of  the  defendant,  but  not  otherwise,  the  plaintiff  may  oppose 
the  same  bj"  affidavits  in  addition  to  those  on  which  the  writ  of  attachment  was 
allowed.     [As  amended  1807,  chap).  G6,  sec.  3.] 

§  159  (Sec.  142). — "WTien  the  writ  of  attachment  is  fully  executed  or  discharged, 
the  sheriff  shall  return  the  same,  with  his  proceedings  thereon,  to  the  court  in 
which  the  action  was  brought. 

§  160  (Sec.  143). — Whenever  any  real  estate  has  been  attached  by  virtue  of  any 
Writ  of  attachment,  such  real  estate  shall  be  bound,  and  the  attachment  £hall  be  a 
Uen  thereon,  from  the  time  that  a  certified  copy  of  the  attachment,  with  the  de- 
scription of  the  real  estate,  has  been  delivered  for  record  in  the  office  of  the  register 
of  deeds  in  the  county  where  the  same  is  situated,  and  not  otherwise.  Each  register 
of  deeds  shall  note  the  day,  hour  and  minute  when  he  receives  such  certified  coi^y, 
and  shall  record  and  index  the  same  in  the  books  kept  for  the  recording  and  index- 
ing of  mortgages.  Such  real  estate  may  be  discharged  and  released  from  record  of 
Buch  attachment,  in  the  following  manner,  to  wit: 

First.  By  filing  for  record,  in  the  office  of  the  register  of  deeds  of  the  county 
■wherein  such  real  estate  is  situated,  a  certified  copy  of  the  order  discharging  or 
vacating  said  attachment. 

Second.  By  filing  for  record,  with  such  register  of  deeds,  satisfaction  of  judgment 
rendered  in  such  action. 

Third.  By  judgment  being  rendered  in  the  action  in  favor  of  the  defendant 
against  whom  the  attachment  is  issued,  upon  filing  for  record,  in  the  office  of  said 
register  of  deeds,  a  transcript  of  such  judgment. 

Fourth.  By  filing  for  record,  in  tho  office  of  such  register  of  deeds,  a  satisfaction 
and  discharge  of  such  attachment,  executed  by  the  plaintiff  in  said  action,  or  by 
the  attorney  of  record  of  the  said  plaintiff,  in  the  same  manner  as  is  required  by  law 
lor  the  execution  of  conveyances  of  real  estate.     [As  amended  Stats.  1883,  \}.  129.] 

§  161  (Sec.  144). — The  plaintiff  in  such  action  may,  at  any  time  before  the  final 
discharge  of  such  attachment,  release  and  discharge  from  such  attachment  any 
part  or  portion  of  such  real  estate  incumbered  by  said  attachment,  by  executing, 
in  the  same  manner  as  conveyances  of  real  estate  are  required  by  law  to  be  exe- 
cuted, a  release  and  discharge  of  such  parts  or  portions  of  said  real  estate  so  desig- 
nated to  be  discharged  and  released,  and  particularly  describing  the  same,  and 
filing  such  release  in  the  office  of  the  register  of  deeds  of  the  county  wherein  the 
lands  are  situated;  and  such  release  or  discharge  shall  in  nowise  affect  the  Hen  and 
incmnbrance  of  said  ■\\Tit  of  attachment  tipon  the  remainder  of  the  real  estate  or 
property  covered  by  said  attachment,  and  not  included  in  such  release. 

§  162  (Sec.  145). — The  register  of  deeds  shall  enter  such  discharge,  release  or 
satisfaction  in  the  sama  manner  and  in  the  same  book  provided  for  the  filing  and 
entry  of  writs  of  attachments,  except  that  the  names  of  the  plaintiffs  shall  be  al- 
phabetically arranged  in  said  index;  and  he  shall  receive  the  same  fees  as  are 
allowed  him  for  the  filing  and  entry  of  attachments  in  his  office. 

§  163  (Sec.  146). — Any  attachment  of  personal  property,  under  subdivision  three 
of  section  one  hundred  and  thirty-four,  may  be  discharged  or  released  of  record,  by 
filing,  in  the  proper  office,  an  order,  release,  transcript  or  satisfaction-piece,  as  pro- 
vided in  section  one  hundi-ed  and  forty -three  aforesaid. 


r  MINNESOTA.  577 

GARNISHMENT. 

§  1C4  (Sec.  147).— In  any  action  in  a  court  of  record  or  justice's  court,  for  the 
recovery  of  monej',  if  the  plaintiff,  his  agent  or  attorney,  at  the  time  of  idling  the 
complaint  or  issuing  the  summons  therein,  or  at  any  time  during  the  pendency  of 
the  action,  or  after  judgment  therein  against  the  defendant,  makes  and  hies,  with 
the  clerk  of  the  court,  or,  if  the  action  is  in  a  justice's  court,  with  the  justice,  an 
affidavit  stating  that  he  believes  that  any  person  (naming  him)  has  i^roperty,  money 
or  effects  in  Iiis  hands,  or  under  his  control,  belonging  to  the  defendant  in  such  ac- 
tion, or  that  such  person  is  indebted  to  the  defendant,  and  that  the  value  of  such 
jiroperty  or  effects,  or  the  amount  of  such  money  cr  indebtedness,  if  the  action  is 
in  the  district  coiu-t,  exceeds  the  sum  of  twenty-tive  dollars,  or,  if  the  action  is  in  a 
justice's  court,  ten  dollars,  a  summons  may  be  issued  against  such  jierson,  as  here- 
inafter provided;  in  which  summons  and  all  subsequent  proceedings  the  plaintiff  in 
the  action  shall  be  known  and  designated  as  plaintiff,  the  defendant  as  defendant, 
and  the  person  against  whom  the  summons  is  issued  as  garnishee.  [As  amended 
1867,  chap.  G5,  sec.  1.] 

§  165  (Sec.  148). — If  the  action  is  in  a  justice's  court,  the  summons  shall  be- 
issued  by  the  justice,  and  shall  require  the  garnithee  to  appear  before  h'm,  at  a 
time  and  x^lace  mentioned  in  such  summons,  not  less  than  six  nor  more  than  twelve 
days  from  the  date  thereof,  and  answer  under  oath  such  c^uestions  as  maybe  put  to 
him  touching  his  indebtedness  to  the  defendant,  and  any  jiroperty,  money  or  effects 
of  the  defendant  in  his  possession  or  under  his  control;  which  summons  shall  be 
served  and  returned  in  the  same  manner  as  a  summons  issued  against  a  defendant 
in  other  causes  in  such  court,  except  that  no  other  than  personal  service  shall  be 
sufficient.  A  copy  of  such  summons,  together  with  a  notice  to  the  defendant  stat- 
ing the  time,  xjlace  and  manner  of  service  upon  the  garnishee,  and  signed  by  the 
justice  of  the  peace  or  officer  who  served  the  same,  and  requiring  such  defendant  to 
appear  and  take  part  in  the  examination,  shall  be  served  upon  the  defendant  at 
least  three  days  before  the  time  specified  in  the  summons  for  the  appiearance  of 
the  garnishee. 

§  1C6  (Sec.  149). — In  actions  in  a  district  court,  such  simimons  may  be  issued  by 
the  plaintiff  cr  his  attorney  in  the  action,  and  shall  be  served  and  returned  in  the 
same  manner  as  a  summons  issued  against  a  defendant  in  other  cases  in  said  court, 
except  that  the  service  shall  in  all  cases  be  personal.  It  shall  require  the  garnishee 
to  appear  before  the  court  in  which  the  action  is  jiending,  or  the  judge  or  the  clerk 
thereof,  or  the  court  commissioner  in  the  county. in  which  the  action  is  pending,  at 
a  time  and  place  mentioned  therein,  not  less  than  twenty  days  from  the  service 
thereof,  and  answer  touching  his  indebtedness  to  the  defendant,  and  any  property, 
money  cr  efTects  of  the  defendant  in  his  possession  or  under  his  control.  A  copy 
of  the  siunmons,  together  with  a  notice  to  the  defendant  stating  the  time,  place 
and  manner  of  service  thereof  upon  the  garnishee,  and  signed  by  the  j)laintiff  or  his 
attorney,  or  the  person  or  officer  who  served  the  summons  upon  the  garnishee,  and 
requiring  such  defendant  to  aj^pear  and  take  part  in  such  examination,  shall  be- 
served  upon  the  defendant  at  least  ten  days  before  the  time  specified  in  the  same 
for  the  appearance  of  the  gai-nishee.  Such  notice  and  ci  ipjr  of  the  siunmons  may 
be  served  in  the  manner  provided  by  law  for  the  service  of  a  summons  in  ordinary 
cases.  The  garnishee  shall  be  entitled  in  all  cases,  whether  the  action  is  in  a  dis- 
trict court  or  before  a  justice  of  the  peace,  to  the  same  fees  as  if  he  were  subi^cenaed 
as  a  witness  in  such  action,  and  may  be  compelled  to  testify  and  disclose  respecting- 
any  matters  contained  in  the  affidavit,  in  the  same  manner  as  if  he  Avere  a  witness 
duly  subi^cenaed  for  that  piurpose.  But  no  perswi  shall  be  obliged  to  appear  as 
garnishee,  unless  his  fees  for  one  day's  attendance,  and  mileage  according  to  law, 
is  paid  or  tendered  in  advance.     [As  amended  1871,  chaj^.  G6,  sec.  1.] 

§  167  (Sec.  150).  The  service  of  the  summons  upon  the  garnishee  shall  attacQ 
and  bind  all  the  i^roperty,  money  or  efTects  in  his  hands,  or  under  his  control, 
belonging  to  the  defendant,  and  any  and  all  indebtedness  owing  by  him  to  the 
defendant,  at  the  date  of  such  service,  to  respond  to  final  judgment  in  the  action. 

§  168  (Sec.  151). — Any  debt  or  legacy  due  from  an  executor  or  administrator,. 
and  any  other  property,  money  or  effects  in  the  hands  of  an  executor  or  adminis- 
trator, may  be  attached  by  this  process. 

§  169  (Sec.  152). — Corporations  may  be  summoned  as  garnishees,  and  may 
appear  by  their  cashier,  treasurer,  secretary,  or  such  officer  as  they  may  appoint, 
and  the  disclosure  of  such  i^erson  or  officer  shall  be  considered  the  disclosure  of  the- 
corporation:  Provided,  that  if  it  appears  to  the  court  that  some  other  member  or 
officer  of  the  corporation  is  better  acciuainted  with  the  subject-matter  than  the  one 
making  disclosure,  the  court  may  cite  in  such  person  to  make  answer  in  the 
premises;  and  in  case  such  person  neglects  or  refuses  to  attend,  judgment  may  h& 
II  Attachueki— 12.  ' '  ' ' 


578  MINNESOTA. 

entered  as  hereinafter  provided  npon  default;  and  sennce  of  tae  snnnnons  upon  the 
a;.;ent  of  any  ccix-oraticn  not  located  in  this  state,  but  doing  business  therein 
through  such  agent,  shall  be  a  valid  service  upon  said  corporation. 

§  170  (Sec.  153). — No  person  or  corporation  shall  be  adjudged  a  garnishee  in 
either  of  the  follctiing  cases,  viz. : 

Fi7'it.  Ey  reason  of  any  money  or  any  other  thing  dv.e  to  the  defendant,  unless, 
at  the  time  of  the  service  of  the  summons,  the  same  is  due  absolutely,  and  without 
depending  on  any  contingency. 

taond.  By  reason  cf  any  debt  due  from  said  garnishee  on  a  judgment,  so  long 
as  Le  is  liable  to  r.n  execution  therecn. 

Third.  Ey  rer.son  cf  any  liability  incurred,  as  maker  or  otherwise,  upon  any 
draft,  bill  cf  exchange  or  promissory  note. 

§  171  (5ec.  1.^4). — Any  money  or  otter  thing  due  or  belonging  to  the  defendant 
may  be  attached  l^y  this  process,  before  it  has  become  payable,  provided  it  is  due 
or  owing  absolutely,  and  without  depending  on  any  contingency,  as  aforesaid;  liut 
the  garnishee  shall  not  be  compelled  to  pay  or  deliver  the  same  before  the  time  ap- 
pointed therefor  by  the  contract. 

§  172  (Sec.  155). — Bills  of  exchange  and  promissory  notes,  whether  under  or 
over  clue,  drafts,  bonds,  certificates  of  deposit,  bank-notes,  money,  contracts  for 
the  paj-ment  cf  money,  and  other  written  evidence  of  indebtedness,  in  the  hands  of 
the  garnishee  at  the  time  of  the  service  of  the  summons,  shall  be  deemed  "  effects  " 
under  the  i^rovisions  of  this  section. 

§  173  (Sec.  156). — After  the  appearance  of  the  garnishee  before  the  com-t  or  offi- 
cer named  in  the  Lummcns,  on  the  day  specined  therein,  or  en  the  day  to  which  an 
adjournment  may  be  had,  the  said  garnishee  shall  be  examined  on  oath  touching 
the  matters  alleged  in  the  affidavit,  and  the  examining  officer  shall  take  full  min- 
utes of  such  examination,  and  file  the  same  with  the  other  papers  in  the  cause: 
Provided,  that,  unless  the  defendant  in  the  action  apj^eai's  at  the  time  and  place 
specified  in  the  summons  for  the  appearance  of  the  garnishee,  such  officer  or  court 
shall  not  proceed  to  the  examination  of  such  garnishee,  or  to  the  taking  of  any  evi- 
dence whatever  therein,  until  the  i:>laintiff  produ;;es  and  files  an  affidavit,  or 
return  of  an  officer,  showing  the  service  of  the  summons  and  notice  upon  the  de- 
fendant as  i:'rescribed  in  sections  one  hundred  and  forty-eight  and  one  hunda-ed  and 
forty-nine  aforesaid;  but  in  case  the  pilaintiff  is  unable  so  to  notify  such  defendant, 
the  said  court  or  officer  may  x^ostpone  the  examination  for  such  reasonable  time  as 
may  be  necessary  to  enable  the  plaintiff  to  notify  such  defendant,  and  he  may  then 
be  notified  of  the  day  to  which  such  i^osti^onement  is  had  iu  the  manner  provided 
by  law  for  the  service  of  a  summons  in  ordinary  cases,  except  that  it  shall  be  a  no- 
tice of  ten  days  in  a  district  court,  and  of  four  daj"s  in  a  justice  court:  Provided, 
that  when  the  defendant  does  not  appear  at  the  time  and  place  si^ecified  in  the 
summons  for  the  appearance  of  the  garnishee,  and  the  plaintifiF,  or  his  agent  or  at- 
torney, files  an  affida^^t  stating  that  the  defendant  is  not  a  resident  of  this  state, 
and  is  not  within  the  same,  as  the  affiant  verily  believes,  it  shall  not  be  necessary 
to  serve  iipon  the  defendant  a  copy  of  such  garnishee  summons,  or  any  notice  to 
the  defendant  in  such  action,  in  any  court;  and  the  examination  shall  i^roceed  in 
the  same  manner  as  if  the  defendant  had  been  duly  served  with  such  copy  and  no- 
tice, or  had  appeared  at  the  time  and  place  specified  in  the  summons  for  the  appear- 
ance of  the  garnishee.     [As  amended  1871,  ch.  66,  sec.  1.] 

§  174  (Sec.  157). — If  it  appears  from  the  evidence  taken,  or  otherwise,  that  any 
person,  not  a  party  to  the  action,  is  interested  or  claims  any  interest  in  any  of  the 
property  or  efiects  in  the  hands  of  the  garnishee,  by  virtue  of  any  agreement  or 
matter  which  existed  prior  to  the  service  of  the  summons,  the  examining  officer, 
upon  application,  mky  permit  such  person  to  appear  in  the  action  and  maintain  his 
right;  and  if  he  does  not  voluntarily  appear,  notice  may  be  given  him  to  appear  or 
be  barred  of  his  claims,  which  notice  may  be  served  as  such  officer  shall  direct.  In 
case  such  person  voluntarily  appears,  or  notice  is  given  as  aforesaid,  he  shall  be 
joined  as  a  partj^  to  the  action,  and  judgment  therein  shall  bind  him  in  the  same 
manner  as  if  he  had  been  an  original  piarty.  » 

§  175  (Sec.  158). ^If  any  person  has  in  his  possession  any  property  or  effects  of 
the  defendant,  which  he  holds  bj-  a  conveyance  or  title  that  is  void  as  to  creditors 
of  said  defendant,  he  maj-  be  charged  therefor,  although  the  defendant  could  not 
have  maintained  an  action  against  him  for  the  same;  but  in  such  cases,  and  in  aU 
cases  where  the  garnishee,  upon  full  disclosure,  denies  any  indebtedness  to,  or  the 
possession  or  control  of  any  property,  money  or  effects  of  the  defendant,  there  shall 
be  no  further  proceeding,  except  in  the  manner  following:  If  the  jilaintiff  in  such 
ca.-e  believes  that  such  garnishee  does  not  answer  truly  in  response  to  the  riuestions 
put  to  him  upon  such  examination,  or  that  the  conveyance  imder  which  he  claims 


MINNESOTA.  579 

title  to  property  is  void  as  against  the  creditors  of  the  defendant,  he  may,  on  notice 
to  such  garnishee  and  to  the  defendant,  at  any  time  before  the  garnishee  has  been 
discharged  by  the  court  or  ofiBcer,  of  not  less  than  six  days,  apply  to  the  court  in 
which  the  action  is  pending,  or  a  judge  thereof,  for  permission  to  file  a  supple- 
mental complaint  in  the  action,  making  the  garnishee  a  party  thereto,  and  setting 
forth  the  facts  upon  whicTi  he  claims  to  chai-ge  such  garnishee;  and  if  probable 
cause  is  shown  l>y  the  plaintiff,  permission  shall  be  granted,  and  such  supplemental 
complaint  shall  be  filed  and  served  upon  both  the  defendant  and  garnishee,  either 
or  both  of  whom  may  answer  the  same,  and  the  plaintiff  may  reply  if  necessary; 
and  the  issues  thus  made  up  shall  then  be  brought  to  trial,  and  tried,  in  the  same 
manner,  in  all  respects,  as  civil  actions.  The  provisions  of  this  section  shaJi  not 
apply  to  proceedings  in  justices'  courts. 

§  170  (Sec.  159). — "When  any  person  duly  summoned  as  a  garnishee  neglects  to 
appear  at  the  time  specified  in  the  summons,  or  within  two  hours  thereafter,  he 
shall  be  defaulted,  and  jud^Tnent  shall  be  rendered  against  him  for  the  amoimt  of 
damages  and  costs  recovered  by  the  jjlaintiff  in  the  action  against  the  defendant, 
jaayable  in  money;  and  execution  may  issxie  directly  against  the  goods  and  chattels 
and  estate  of  said  garnishee  therefor:  Provided,  the  com-t  may,  upon  good  cause 
shown,  remove  such  default,  and  permit  the  garnishee  to  appeal*  and  answer,  on 
such  terms  as  may  be  just. 

§  177  (Sec.  IGO). — No  judgment  shall  be  rendered  against  any  garnishee  until 
after  judgrment  is  rendered  against  the  defendant;  but  a  garnishee  may  be  dis- 
charged after  examination  and  disclosure,  if  it  appears  that  he  ought  not  to  be  held; 
whenever  a  garnishee  is  not  discharged  as  aforesaid,  the  cause  shall  be  continued 
to  abide  the  residt  of  the  original  action.  And  in  case  such  original  action  pending 
in  any  com-t  not  a  court  of  record  shall,  under  the  provisions  of  law,  be  transferred 
to  any  other  com-t,  except  by  appeal,  any  garnishee  action,  the  judgment  in  which 
is  conditioned  on  the  judgment  in  such  original  action,  shall  be  also  transferred 
with  such  origdnal  action;  and  written  notice  of  such  transfer  shall  be  served  on 
the  garnishee  defendant  or  defendants,  by  the  plaintiff  in  such  action,  specifying 
the  court  to  which  such  transfer  is  made,  and  the  time  when  such  garnishee  action 
will  be  heard,  which  shall  be  jiot  less  than  two  days  from  the  service  of  such  notice; 
and  such  garnishee  action,  so  transferred,  shall  carry  with  it  all  proceedings  already 
had,  and  any  disclosure  aheady  made  therein.     [As  amended  1875,  chap.  59,  sec.  1.] 

§  178  (Sec.  161). — Xo  judgment  shall  be  rendered  upon  the  disclosure  of  a  gar- 
nishee, except  by  order  of  the  judge  of  the  court  in  M'hich  the  action  is  pending,  or, 
in  case  of  his  absence  or  inabiLity  to  act,  by  order  of  a  judge  of  another  district. 

§  179  (Sec.  162). — Court  commissioners,  clerks  of  the  district  court,  or  any  referee 
appointed  by  the  court  for  that  purpose,  are  hereby  authorized  and  required  to  take 
the  disclosure  of  any  garnishee  in  MT-iting,  together  with  any  other  testimony 
offered  by  the  parties  to  the  action,  and  reijort  the  same  to  the  coui-t;  all  testimony 
offered  by  the  parties  to  be  taken  subject  to  any  objection  seasonably  interposed 
thereto.     [As  amended  1S71,  chaj).  GG,  sec.  1.] 

§  180  (Sec.  1C3). — Any  court  commissioner,  clerk  or  referee  shall  receive  from 
the  plaintiff  ten  cents  per  folio  for  all  evidence  taken  and  reduced  to  WTiting,  and 
the  fees  so  paid  by  the  plaintiff  may  be  taxed  in  the  judgment  agaiast  the  garnishee. 
[As  amended  1871,  chap.  GG,  sec.  1.] 

§  181  (Sec.  1G4).— When  any  person  is  charged  as  garnishee  by  reason  of  any 
property  or  effects,  other  than  an  indebtedness  payable  in  money,  which  he  holds, 
or  is  bomid  to  deliver  to  the  defendant,  such  garnishee  shall  deliver  the  same,  or  so 
much  thereof  as  may  be  necessary,  to  the  officer  holding  the  execi;tion,  and  the 
said  property  shall  lie  sold  by  the  officer,  and  the  proceeds  accounted  for,  in  the 
same  manner  as  if  it  had  been  taken  en  execution  against  the  defendant:  Provided, 
the  garnishee  shall  not  be  compelled  to  deliver  any  specific  articles  at  any  other 
time  or  place  than  as  stipulated  in  the  contract  between  him  and  the  defendant. 

§  182  (Sec.  1G5). — Upon  application  and  notice  to  the  parties,  the  court  may  de- 
tennine  the  value  of  any  profjcrty  or  efl'ects  so  in  the  hands  of  the  garnishee  for 
delivery,  and  may  make  any  order  relative  to  the  keeping',  delivery  and  sale  of  the 
same  that  is  necessary  to  protect  the  rights  of  those  interested,  and  may  make  any 
order  touching  the  proi:ierty  attached  that  is  necessary  for  the  protection  of  all 
parties  interested,  upon  the  api)lication  of  any  party  in  interest;  and  may  require, 
at  any  time  after  the  service  of  such  garnishee  summons,  the  profjerty,  money  or 
effects  so  attached  to  be  brought  into  court,  or  delivered  to  a  receiver  appointed  by 
the  court. 

§  183  (Sec.  166). — ^^^lenever  it  appears  that  any  property  or  effects  in  the  hands 
of  the  garnishee,  belonging  to  the  defendant,  are  properly  mortgaged,  pledged,  or 


580  MINNESOTA. 

in  any  way  liable  for  the  pajnnent  of  any  debt  due  to  said  garnishee,  the  plaintiff 
may  be  allowed,  under  a  sj^ecial  order  of  court,  to  pay  or  tender  the  amount  due; 
and  the  garnishee  shall  thereupon  deliver  the  property  or  effects,  as  hereinbefore 
provided,  to  the  officer  holding  the  execution,  who  shall  sell  the  same  as  in  other 
cases,  and  out  of  the  proceeds  shall  repay  the  plaintiff  the  amount  i;aid  by  him  to 
the  garnishee  for  the  redemption  of  such  property  or  effects,  with  legal  interest 
thereon,  and  applj^  the  balance  upon  the  execution. 

§  184  (Sec.  1G7). — If  any  garnishee  refuses  or  neglects  to  deliver  any  property  or 
effects  as  provided  in  the  preceding  section,  he  may  be  punished  for  contempt  of 
court,  and  shall,  in  addition,  be  liable  to  the  plaintiff  for  the  value  of  such  prop- 
ertj''  or  effects,  less  the  amount  of  the  lien,  if  any,  to  be  recovered  by  action. 

§  185  (Sec.  168). — Nothing  herein  shall  prevent  the  garnishee  from  selling  such 
property  or  effects  so  in  his  hands,  for  the  payment  of  the  demand  ior  which  they 
are  mortgaged,  pledged,  or  otherwise  liable,  at  any  time  before  payment  or  tender 
of  the  amount  due  to  him:  Provided,  such  sale  is  authorized  by  the  terms  of  the 
contract  between  said  garnishee  and  the  defendant. 

§  18G  (Sec.  1G9). — If  any  such  property  or  effects  are  destroyed,  without  any 
negligence  or  default  of  the  garnishee,  after  judgment  and  before  demand  by  the 
officer  holding  the  execution,  such  garnishee  shall  be  discharged  from  all  liability 
to  the  platatitf  for  the  non -delivery  of  such  property  or  effects. 

§  187  (Sec.  170). — Judgment  against  a  garnishee  shall  be  rendered,  if  at  aU,  for 
the  amount  due  the  defendant,  or  so  much  thereof  as  may  be  necessary  to  satisfy 
the  plaintiff's  judgment  against  said  defendant,  with  costs  taxed  and  allowed 
in  the  proceeding  against  the  garnishee. 

§  188  (Sec.  171).^ — Whenever  any  person  is  s\mamoned  as  a  garnishee  in  the  dis- 
trict court,  he  may,  at  any  time  before  the  return-day  of  the  simamons,  appear  be- 
fore the  officer  named  therein,  or  any  justice  of  the  peace  competent  to  trj-  causes 
between  the  parties,  and,  with  the  consent  of  the  plaintiff,  to  be  certified  by  said 
officer  or  justice,  make  his  disclosure  upon  oath,  A\'ith  the  like  effect  as  if  made  on 
the  day  named  in  the  summons.  In  case  such  disclosure  is  taken  by  a  justice,  he 
shall  receive  the  same  fees  as  are  allowed  by  section  one  hundred  and  sixty-three 
aforesaid. 

§  189  (Sec.  172).  ^If  the  plaintiff  will  not  consent  to  such  examination  and 
disclosiire,  the  garnishee,  in  case  he  is  compelled  to  be  absent  from  the  county  until 
after  the  return  day  of  the  summons,  may  make  affidavit  to  that  effect,  which, 
with  a  notice  of  the  time,  place,  and  the  officer  or  justice,  he  shall  serve  upon  the 
plaintiff  or  his  attornej^,  at  least  twenty-four  hours  previous  to  the  time  specified 
in  it  for  the  disclosure;  and  upon  due  proof  of  such  service,  his  disclosure  shall  be 
taken  as  provided  in  the  i^receding  section,  and  with  like  effect. 

§  190  (Sec.  173). — If  any  person  summoned  as  a  garnishee  appears  and  submits 
himself  to  an  examination  upon  oath,  as  herein  provided,  he  shall  be  allov.-ed  his  costs 
for  travel  and  attendance,  and,  in  special  and  extraordinary  cases,  such  further  sum 
as  the  coui't  shall  deem  reasonable  for  his  counsel  fees  and  other  necessary  exjjenses. 

§  191  (Sec.  174). — If  any  such  person  is  adjudged  chargeable  as  garnishee,  his 
said  costs  and  allowance  shall  be  deducted  and  retained  out  of  the  propertj\  money 
or  effects  in  his  hands,  and  he  shall  be  accoimtable  only  for  the  balance,  to  be  paid 
on  the  execution. 

§  192  (Sec.  175). — If  such  person  is  charged  on  account  of  any  specific  articles 
of  personal  property,  he  shall  not  be  obliged  to  deliver  the  same  to  the  officer  serv- 
ing the  execution,  untd  his  costs  allowed  and  taxed  are  fully  paid  or  tendered;  and 
if  he  is  discharged  for  any  cause,  he  shall  recover  judgment  against  the  plaintiff  for 
his  costs,  and  have  execution  therefor. 

§  193  (Sec.  176). — The  plaintiff,  under  the  provisions  of  this  section,  shall  in  no 
cases,  excefjt  in  cases  provided  for  in  section  one  hundi-ed  and  fiftj"-nine  aforesaid, 
recover  a  greater  sum  for  costs,  including  the  costs  allowed  to  the  garnishee,  than 
the  amount  of  damages  recovered. 

§  194  (Sec.  177). — Xo  judgment  shall  be  rendered  against  a  garnishee  in  a  jus- 
tice's court  where  the  judgment  against  the  defendant  is  less  than  ten  dollars,  ex- 
clusive of  costs,  nor  where  the  indebtedness  of  the  garnishee  to  the  defendant,  or 
the  value  of  the  property,  money  or  effects  of  the  defendant  in  the  hands  or  under 
the  control  of  the  garnishee,  as  proved,  is  less  than  ten  dollars.  If  the  action  is  in 
a  district  court,  no  judgment  shall  bo  iti^dtred  against  the  garnishee  where  the  in- 
debtedness proved  against  him,  or  the  value  of  the  money,  property  or  effects  of 


MISSISSIPPI.  581 

the  defendant  in  his  hands  or  under  his  control,  shall  be  less  than  twenty-five  dol- 
lars; but  in  all  such  cases  the  garnishee  shall  be  discharged,  and  shall  recover  his 
costs,  and  have  execution  therefor  against  the  j^laintiff. 

§  105  (Sec.  178).— The  judginent  against  a  garnishee  shall  acquit  and  discharge 
him  from  all  claims  of  all  parties  to  the  process,  in  and  to  the  proiierty,  money 
or  effects  paid,  delivered  or  accounted  for  by  such  garnishee  by  force  of  such 
judgment. 

§  ICG  (Sec.  170). — If  any  person  summoned  as  a  garnishee  is  discharged,  the 
judgment  .shall  be  no  bar  to  an  action  brought  against  him  by  the  defendant  or 
other  claimants  for  the  same  demand. 

§  197  (Sec.  ISO).— Any  party  to  a  proceeding  under  this  title,  deeming  himself 
aggrieved  by  any  order  or  final  judgTner.t  therein,  may  lemove  the  same  from  a 
justice's  court  to  the  district  court,  or  from  a  district  court  to  the  supreme  court, 
by  r.pi^eal,  in  the  same  cases,  in  like  manner,  and  with  like  effect,  as  in  a  civil 
action. 

§  198. — A  defendant  whose  property,  money  or  effects  has  been  garnished,  may, 
at  any  time  before  the  trial  of  the  action  in  which  he  is  defendant,  execute  to  the 
plaintiff  a  bond,  in  double  the  amount  claimed  in  the  complaint,  with  two  or  more 
sureties,  who  shall  justify  and  be  approved  by  the  judge  of  the  district,  or  coiu't 
commissioner  of  the  county,  in  which  the  garnishee  proceedings  were  instituted, 
conditioned  that  if  the  plaintiff  recover  judgment  in  the  action,  he  will  pay  such 
judgment,  or  an  amount  thereon  equal  to  the  value  of  the  money,  property  or  ef- 
fects so  gai'nished;  and  the  officer  approving  svich  bond  shall  make  an  order  dis- 
charging such  garnishment,  and  releasing  such  money,  property  or  efiects  therefrom, 
upon  filing  such  bond  with  the  court  in  which  the  garnishee  proceedings  were  enti- 
tled, and  serving  upon  the  garnishee  a  copy  of  the  order  discharging  such  ptroceed- 
ings.  The  defendant  shall  have  the  same  power  to  receive  or  collect  the  money, 
property  and  effects  so  garnished,  in  the  same  manner  as  if  such  garnishee  pro- 
ceedings had  never  been  instituted.     [1871,  ch.  67,  sec.  1.     See  Stats.  1881,  p.  72.] 


In  justices'  courts — Page  675,  sec.  1;  pp.  690-692,  sees.  97-112.  Venue  where 
defendant  is  non-resident,  p.  713,  sec.  50.  Attachment  subjects  corporation  to 
jurisdiction,  p.  717,  sec.  71. 

Insolvency  dissolves  attachment — Page  193,  sec.  1;  costs,  p.  196,  sec.  6. 

Beneficiary  funds  not  liable  to — Page  444,  sec.  369.  Against  executors,  etc.,  p. 
592,  sec.  53. 

Liens  on  logs  enforced  by — Pages  342-346,  sees.  40,  48-55,  65-67. 

Mechanics'  liens  against  non-residents — Page  874,  sec.  13. 

State  debts  to  take  precedence  of — Page  90,  sec.  41;  p.  238,  sec.  94, 

Exemptions— Page  756,  sec.  310,  and  Stats.  1879,  p.  20;  Stats.  1881,  p.  45; 
homesteads,  p.  767,  sec.  1;  interest  of  purchaser  at  mortgage  sale  subject  to,  p. 
844,  sec.  17. 


MISSISSIPPI. 

[Revised    Code,   1880.] 


CHAPTER  67. 

AN  ACT  IN  RELATION  TO  ATTACHMENT  AGAINST  DEBTORS. 

§  2414. — The  remedy  by  attachment  shall  apply  to  all  actions  or  demands, 
foundeil  upon  any  indebtedness,  or  for  the  recovery  of  damages  for  the  lireach  of 
any  contract,  express  or  implied,  and  to  actions  founded  upon  any  jsenal  statute. 

§  2415. — The  creditor,  his  agent  or  attorney,  shall  make  oath  before  a  judge  of 
the  supreme  court,  a  judge  of  a  circuit  court  or  a  chancellor,  or  liefore  a  clerk  of  a 
circuit  court  or  chancery  court,  or  the  deputy  of  such  clerk,  or  any  justice  of  the 
peace,  or  the  mayor  or  chief  magistrate  of  any  incorporated  city  or  town,  of  the 


582  MISSISSIPPI. 

amount  of  his  debt  or  demand,  to  the  best  of  his  knowledge  and  belief,  and  shall 
also  make  oath  to  one  or  more  of  the  following  particiilars : 

1.  That  the  defendant  is  a  foreign  corporation,  or  a  non-resident  of  this  state;  or, 
_  2.  That  he  has  removed,  or  is  about  to  remove,  himself,  or  his  property,  out  of 
this  state;  or, 

3.  That  he  so  absconds,  or  conceals  himself,  that  he  cannot  be  served  with  a 
summons;  or, 

4.  That  he  contracted  the  debt  or  incurred  the  obligation  in  conducting  the 
business  of  a  ship,  steamboat  or  other  water-craft  in  some  of  the  navigable  waters 
of  this  state;  or, 

5.  That  he  has  property,  or  rights  in  action,  which  he  conceals,  and  unjustly 
refuses  to  apply  to  the  payment  of  his  debts;  or, 

6.  That  he  has  assigned  or  disposed  of,  or  is  aboiit  to  assign  or  dispose  of,  his 
proi>erty,  or  rights  in  action,  or  some  part  thereof,  with  intent  to  defraud  his  cred- 
itors; or, 

7.  That  he  hath  converted  or  is  about  to  convert  his  property  into  money,  or 
evidences  of  debt,  with  intent  to  place  it  beyond  the  reach  of  his  creditors;  or, 

8.  That  he  fraudulently  contracted  the  debt,  or  incurred  the  obligation,  for 
which  suit  has  been,  or  is  about  to  be,  brought. 

§  2416. — The  creditor,  his  agent  or  attorney,  shall  also  give  bond,  with  a  surety 
or  sureties,  to  be  approved  by  the  officer  issuing  the  attachment,  in  double  the  sum 
for  which  the  complaint  is  made,  payable  to  the  defendant,  and  conditioned  in  the 
form  or  to  the  effect  following,  to  wit: 

"The  condition  of  the  above  obligation  is,  that  whereas  the  above  bound 

prays  an  attachment  against  the  estate  of  the  said for  the  sum  of ,  re- 
turnable to  the court ,  on  the day  of  next: 

"  Now,  if  the  said  plaintiff  shall  pay  to  the  said  defendant  all  such  damages  as 
he  shall  sustain  by  the  wrongful  suing  out  of  the  said  attachment,  and  all  costs 
which  may  be  awarded  against  the  said  plaintiff  in  said  suit,  then  the  said  obliga- 
tion shall  be  void,  but  otherwise  it  shall  remain  in  full  force:" 

"Which  bond,  together  Avith  the  affidavit  for  the  attachment,  shall  be  re- 
turned by  the  officer  taking  the  same  to  the  coiurt  to  which  the  attachment  is 
returnable. 

§  2417.  — If  such  bond  ]5uri3ort  to  be  executed  by  an  agent  or  attorney  in  fact  of 
the  attaching  creditor,  it  shall  be  prima  facie  evidence  that  the  agent  or  attorney 
in  fact  had  due  authority  to  act. 

§  2418.— On  affidavit  being  made  and  bond  given  as  aforesaid,  the  officer  be- 
fore whom  it  is  made  shall  issue  one  or  more  writs  of  attachment  against  the  es- 
tate of  the  debtor,  which  attachment  shall  be  directed  to  the  sheriff,  or  any 
constable,  or  other  proper  officer  of  the  county  or  counties  in  which  the  defendant 
ehall  have  property,  or  debts,  and  shall  be  returnable  to  the  next  term  of  the  cir- 
cuit court  of  any  county,  or  of  a  justice  of  the  i')eace  of  any  district,  in  which  the 
defendant,  or  property  or  debts  of  the  defendant,  may  be  found,  and  shall  be  the 
leading  process  in  the  suit.    [Amended  Stats.  1884,  p.  78.] 

§  2419. — The  writ  shall  be  in  the  form  or  to  the  effect  following,  to  wit: 
The  state  of  Mississippi, 

To  the  sheriff  (or  coroner)  or  any  constable  of county,  greeting:  Whereas, 

A.  B.  (or  agent  or  attorney  of  A.  B.)  hath  complained  on  oath  (or  affirmation),  to 

,  one  of  the  judges  of  the  supreme  court  (or  other  officer  as  the  case  may  be), 

that  C.  D.  is  justly  indebted  to  the  said  A.  B.,  to  the  amount  of  S ,  and  that 

the  said  C  D.  is  a  non-resident,  etc.  (reciting  the  affidavit),  and  bond  and  security 
ha\ing  been  given  according  to  the  statute: 

We  therefore  command  you,  that  you  attach  the  said  C  D.  by  his  estate,  real 
and  personal,  in  your  county,  to  the  value  of  the  said  demand,  and  costs  of  suit, 
and  that  yon  safely  keep  the  same  according  to  law,  so  as  to  compel  the  said  C.  D. 

to  appear  before  the court,  to  be  held  at ,  in  and  for  the  county  of 

,  on  the Jlonday  of  ,  to  answer  the  above  complaint.     And 

that  you  summon  the  said  C.  D.,  if  to  be  found  in  your  county,  to  appear  and  an- 
swer accordingly.     And  have  there  then  this  ■writ,  ■with  your  proceedings  thereon. 

Witness  my  hand  this day  of  ,  188 — . 

Such  writ  shall  be  signed  by  the  officer  granting  the  same,  or  if  issued  by  a 
clerk  or  his  deputy,  shall  be  dated,  signed,  and  sealed,  as  other  ■writs;  and  no  at- 
tachment shall  be  quashed  or  abated  for  want  of  form,  if  the  substantial  matters 
expressed  in  the  foregoing  precedents  be  contained  therein. 

§  2420. — "NATien  two  or  more  persons,  not  residing  in  this  state,  are  jointly  in- 
debted, the  ■iTOt  of  attachment  may  be  issued  against  such  debtors,  or  anj"  of 
,  them,  by  their  proper  names,  or  by  the  name  of  the  partnership,  or  by  whatever 


MISSISSIPPI.  583 

other  name  sucli  debtors  may  be  called  or  known  in  this  state,  or  ag'ainst  the  heirs, 
executors,  or  administrators  of  them,  or  any  or  either  of  them,  and  may  be  levied 
upon  the  separate  or  joint  estate,  or  both,  of  such  debtors,  and  the  lands,  tene- 
ments, money,  goods,  chattels,  effects,  rights  and  credits  of  such  debtors,  or  any  or 
either  of  them,  shall  be  liable  to  lie  seized  and  taken,  for  the  satisfaction  of  any 
debt  or  demand  for  which  an  attachment  will  lie  by  this  act. 

§  2421. — The  officer  granting  an  attachment  may  issue  duplicate  writs  to  any 
other  county,  in  which  the  defendant  may  have  property  or  debts  due  him,  which 
writs  shall  be  returnable  to  the  court  to  which  the  original  is  returnable,  and  shall 
be  executed  and  returned  in  like  manner;  and  where  the  attachment  has  not  been 
executed,  or  where  no  property  has  been  found,  or  not  suincient  to  satisfy  the 
debt,  or  where  the  plaintiff  desires  to  garnish  other  persons,  the  clerk  of  the  court, 
to  which  the  same  is  returnable,  may  issue  alias  writs,  to  the  same  or  other  covui- 
ties,  without  a  renewal  of  the  bond  or  affidavit. 

§  2422. — If,  at  the  time  of  issuing  the  writ  of  attachment,  the  attaching  cred- 
itor shall  suggest  that  anj^  j^erson  is  indebted  to  the  debtor,  or  has  property  of  his 
in  his  hands,  or  knows  of  any  other  person  so  indebted,  or  who  has  effects  or  projD- 
erty  of  the  debtor  in  his  hands,  the  officer  issuing  the  writ  of  attachment  shall  in- 
sert therein  a  command  to  the  officer,  to  summon  such  person  to  apjiear  on  the 
return  day  of  the  attachment,  and  answer,  in  writing,  under  oath,  as  garnishee  of 
the  defendant  in  attachment;  and  a  summons  of  garnishment  may  be  issued  to  any 
county. 

§  2423. — The  officer  who  shall  receive  such  attachment  shall  forthwith  serve  and 
levy  the  same  upon  the  lands  and  tenements,  money,  goods,  chattels  and  debts  of 
the  defendant,  wherever  the  same  may  be  foimd,  or  in  the  hands  of  any  person  in- 
debted to  or  having  effects  of  the  defendant,  and  shall  .summon  such  person  as  a 
garni-shee,  to  appear  at  the  court  to  which  the  attachment  is  returnable,  there  to 
answer,  on  oath,  what  he  is  indebted,  or  was  indebted,  to  the  defendant,  at  the 
time  of  the  service  of  the  attachment,  or  between  that  time  and  the  time  of  an- 
swering, or  what  effects  of  the  defendant  he  hath  in  his  hands,  or  had  at  the  time 
of  the  service  of  the  attachment,  or  since,  and  what  effects  or  debts  of  the  defend- 
ant there  are  in  the  hands  of  any  other  person,  to  his  knowledge  or  belief;  and 
such  officer  shall  have  power  to  seize  the  books  of  account,  and  other  evidences  of 
indebtedness,  belonging  to  the  defendant,  and  to  summon,  as  garnishees,  all  per- 
sons apj)earing  thereby  to  be  indebted  to  the  defendant,  and  to  levy  on  the  stock, 
share  or  interest  which  the  defendant  may  have  or  own  in  any  cop)artnership  or 
incorporated  company;  and  all  property,  debts  and  choses  in  action  attached,  shall 
be  bound  by  such  attachment  from  the  date  of  the  service  thereof;  if  the  defend- 
ant can  be  found,  the  said  officer  shall  also  summon  him  to  appear  and  answer  the 
action. 

§  2424. — Every  writ  of  attachment  shall  be  executed  in  the  following  manner, 
that  is  to  say:  In  case  of  a  levy  on  real  estate  the  officer  shall  go  to  the  house  or 
land  of  the  defendant,  or  to  the  person  or  house  of  the  person  in  whose  p)ossession 
the  same  may  be,  and  then  and  there  shall  declare  that  he  attaches  the  same,  at 
the  suit  of  the  plaintiff  in  the  writ  named.  Biit  in  the  event  the  land  is  wild,  un- 
cultivated or  unoccu2jied,  a  return  upon  the  ■writ,  bj'  the  piroper  officer,  that  he  has 
attached  the  land,  giving  a  description  thereof  by  numbers,  metes  and  Iwunds,  or 
otherwise,  shall  be  a  sufficient  levy  ^^ithout  going  upon  the  land.  In  case  of  a 
levy  on  the  stock,  share  or  interest  of  the  defendant  in  any  copartnershixi  or  incor- 
porated comjiany,  the  officer  shall  go  to  the  office  or  plac^  of  business  of  such  j^art- 
nership  or  company,  and  in  the  presence  of  such  officers,  clerks,  or  agents  thereof 
as  may  be  present,  shall  make  a  similar  declaration  as  in  case  of  real  estate.  In 
case  of  a  levy  on  the  rights,  credits,  and  choses  in  action  of  the  defendant,  the  offi- 
cer shall  seize  and  take  into  possession  the  books  of  account  and  all  other  evidences 
of  in<lebtedness,  if  the  same  can  be  had,  and  shall  summon  all  persons  alleged  to 
be  indebted  to  the  defendant,  or  to  have  effects  of  said  defendant  in  their  hands,  to 
appear  and  answer  as  garnishees;  and  in  case  of  a  levy  on  goods  or  chattels  of  the 
defendant,  the  officer  shall  take  the  property  into  possession,  and  safely  keep  the 
same,  to  answer  and  abide  the  judgment  of  the  court,  unless  such  thu-d  person  as 
may  have  the  same  in  possession  shall  enter  into  bond  with  secm-ity  to  be  approved 
by  the  said  officer,  payable  to  the  jilaintiff  in  attachment,  in  double  the  value  of 
the  i>roperty  attached,  conditioned  to  have  said  property  forthcoming  to  answer 
and  abide  the  judgment  of  the  court  in  said  suit. 

§  2425. — The  officer  serving  an  attachment  shall  maJie  a  full  return  thereon  of 
all  his  proceedings,  on  or  before  the  return  day  of  the  writ.  He  shall  deliver  to 
the  com-t  or  clerk  all  bonds  which  he  may  have  taken  pursuant  to  law. 

§  242G. — If  a  writ  of  attachment,  returnable  to  the  circuit  court,  be  served  by  a 
constable,  or  coroner,  or  marshal  of  a  city,  or  by  any  other  person  specially  ap- 


584  MiGsrssippi. 

pointed  for  that  purpose,  the  writ  of  attachment,  "nath  the  return  thereon,  of  the 
action  of  sucii  person  r,nd  all  property  and  effect.*  levied  on,  ehcAl  forthwith  he 
handed  to  the  sheriff  of  the  proper  county,  who  shall  lie  responsihle  for  the  prop- 
erty so  seized,  and  shall  return  the  WTit  to  the  proper  officer  with  a  statement  of 
his  action  uu'.ler  it,  unless  such  sheriff  should  he  a  j  arty,  in  Y.'hich  event  the  (jfficer 
serving  the  attachment  shall  make  the  return,  and  likewise  retain  the  jiroperty, 
unlesa  the  court,  or  judge,  in  vacation,  shall  make  lome  order  for  the  safekeeping 
and  forthcoming  thereof;  which  order  such  court,  or  judge  in  vacation,  is  author- 
ized to  make. 

§  2427. — The  defendant,  at  any  time  before  final  judgment,  may  reple\^  the 
person;il  property  seized  and  taken  into  possession  by  the  cfHcer  serving  an  attach- 
ment, by  ;  iviiig  to  such  officer  a  Lend,  with  cufacient  sureties,  to  be  approved  by 
him,  payable  to  the  plaintiff,  in  double  the  value  cf  such  i:rcperty,  conditioned  ta 
have  said  ]>rcperty  fcrthccming,  to  answer  and  abide  the  judgment  of  the  court  in 
said  suit,  or  in  default  thereof,  to  j  ay  and  satisfy  the  judgment  to  the  extent  of  the 
value  of  said  property;  and  on  the  execution  cf  such  bond,  the  said  officer  shall  re- 
store to  the  defendant  the  property  so  replevied,  and  shall  return  the  bond  so 
taken,  mth  the  said  ^vrit  of  attachment,  and  all  his  proceedings  thereon.  Such 
replevin  shall  not  aHect  the  lien  of  tlie  attachment,  or  the  proceedings  thereon,  as 
to  any  rights,  credits,  or  choses  in  action  of  the  defendant. 

§  2428. — If  any  defendant  in  attachment  shall,  at  any  time  before  the  return 
thereof,  execute  and  deliver  to  the  ofHcer  serving  the  same  a  bond,  with  two  or 
more  suflicient  sureties,  to  be  approved  by  said  cfEcer,  payable  to  the  plaintiff  in 
attachment,  in  a  penalty  double  the  amount  claimed  by  said  plaintiff,  conditioned 
to  pay  and  satisfy  any  judgment  which  may  be  recovered  by  the  plaintiff  in  said 
suit,  with  all  costs,  the  said  attachment  shall  be  thereby  discharged;  and  all  the 
property  of  every  kind  levied  en,  attached,  or  seized  by  virtue  thereof,  shall  be  re- 
leased and  restored  to  such  defendant.  The  said  bend  shall  be  retiu-ned  with  the 
attachment;  and  in  case  of  any  recovery  by  the  plaintiff  in  said  suit,  judg-ment 
shall  be  entered  up  against  the  defendant  and  the  sureties  in  the  said  bond.  After 
the  return  of  said  attaohmeut,  the  bond  herein  provided  for  may  he  given,  at  any 
time  l/cfore  llnal  judgment,  and  may  be  taken  by  the  sheriff,  cr  officer  by  whom 
the  attachment  was  served,  in  ease  any  of  the  attached  f)roperty  remains  in  his 
hands,  or  otherwise,  by  the  clerk  of  the  court  in  which  the  attachment  is  pending. 

§  2429. — The  defendant  in  attachment  in  the  circuit  court  may  file  a  plea  in 
aba-tement,  verified  by  afiidavit,  traversing  the  truth  t  f  the  alleged  causes  for  which 
said  attachment  was  sued  cut,  and  upon  such  flea  being  filed,  the  court,  on  motion 
of  the  defendant,  may  order  a  jm-y  to  be  impanneled,  during  the  term  to  which 
the  attachment  is  returnable  or  the  term  of  the  appearance  of  the  defendant,  to 
try  and  determine  the  truth  of  said  cause  ■;  and  if  the  jury  shall  find  for  the  de- 
fendant, they  shall  assess  the  damages  against  the  plaintiff,  for  wrongfully  suing 
out  the  same. 

§  2430. — On  the  trial  of  such  issue,  the  defendant  may  give  e\-idence  as  to  the 
actual  damages,  if  any,  which  the  issuance  of  such  attachment  has  occasioned  him; 
but  the  tlefendant,  when  he  files  his  plea  in  abatement,  shall  give  plaintiff  written 
notice  of  what  special  damages  he  will  insist  upon  at  the  trial.  If  such  issue  be 
decided  for  the  defendant,  he  shall  have  j  udgment  that  the  attachment  be  dis- 
charged, and  against  plaintiff,  and  the  sureties  in  his  attachment  bond,  for  the 
damages  assessed  by  the  jury,  and  the  costs  of  suit:  Provided,  that  such  judgment 
against  the  sureties  in  the  attachment  bond  shall  not  exceed  the  penalty  thereof. 

§  2431. — If  the  issue  be  decided  for  plaintiff,  the  defendant  shall  be  ijermitted  to 
plead  to  the  merits,  on  such  terms  as  the  court  may  impose. 

§  2432. — The  plaintiff  may  dismiss  his  attachment,  but  defendant  shall  have  a 
jury  impanneled  forthwith,  to  assess  the  damage  sustained,  by  reason  of  suing  out 
the  attachment. 

§2433.— The  judgment  in  favor  of  the  defendant  against  the  plaintiff  for  the 
damages  assessed  and  the  costs  may  be  pleaded  by  the  defendamt  as  a  pa>TiKnt,  in 
the  same  action,  or  in  any  other  suit,  on  the  same  cause  of  action  on  which  the  at- 
tachment was  sued  out.  No  execution  shall  be  issued  on  such  judgment  imtil  after 
the  dismissal  of  the  action  or  final  juolgment  on  the  merits.  If_  the  action  shall  be 
dismissed,  or  if,  upon  a  trial  on  the  merits,  judgment  shall  be  in  favor  of  the  de- 
fendant, without  his  having  obtained  the  benefit  of  the  judgment  in  his  favor  for 
damages  and  costs,  as  aforesaid,  he  shall  have  execution  of  said  judgment  in  his 
favor.  If  the  plaintiff  shall  recover  in  the  trial  on  the  merits,  and  on  such  trial 
the  defendant  did  not  avail  of  his  judgment  against  the  plaintiff  for  damages  and 
costs,  the  greater  recovery  shall  be  credited  with  the  sum  of  the  smaller,  and 


MISSISSIPPI.  585 

jud^Ttacnt  shall  be  rendered  by  the  court  in  favor  of  the  party  to  whom  the  diflFer- 
ence  may  be  due. 

§  2434. — If  the  issue  on  a  plea  in  abatement  be  found  for  the  defendant,  the 
attachment  shall  bo  thereby  clischarjired,  and  all  property  seized  under  it,  and  all 
persons  famimoned  as  frarnisheea  shall  be  released  from  it,  but  the  action,  unless 
dismissed  Ly  the  iilr.intiLi,  shall  be  proceeded  ^vith,  in  all  respects,  as  if  it  had  been 
an  ordinary  action  in  its  commencement,  and  the  costs  accruing'  in  it,  after  the  trial 
of  the  issue  on  the  plea  in  abatement,  shall  abide  the  result  of  such  action. 

§  2435. — If  the  plaintiff,  within  five  days  after  the  expu-ation  of  the  term  of  the 
court  r.t  which  judgment  is  rendered  discharging  his  attachment,  shall  perfect  an 
appeal  from,  such  jud,rmeiit,  the  attachment  shall  not  be  discharged,  nor  ^-amishces 
nor  property  be  released  therefrom  by  such  judgment,  but  such  appeal  shall  pre- 
serve the  attachment  in  full  force,  to  await  the  result  of  the  appeal.   ■ 

§  2436. — The  defendant  in  attachment  may  appear,  by  himself,  or  attorney, 
without  replevying  the  property  attached,  and  defend  the  suit,  as  in  other  actions 
for  tlie  recovery  of  money,  at  any  time  before  final  judgment;  but  no  judgment  by 
default  regularly  tahen,  shall  be  set  aside,  except  on  cause  shown;  and  in  case  the 
defendant  shall  have  been  personally  summoned  or  shall  appear  and  i^lead  to  the 
action,  the  judgment  therein  shall  have  the  same  force  and  effect  against  the  per- 
son and  property  of  the  defendant,  as  in  other  actions  where  a  summons  has  been 
pez'scnally  served  on  him:  Provided,  hoiccvcr,  that  such  axopearance  shall  not  vacate 
or  alTcct  any  bond  taken  under  this  act,  nor  discharge  any  garnishee,  nor  affect 
any  lien  created  by  the  attachment,  but  the  proceedings  in  respect  to  any  property 
attached,  or  any  garni.ihee  summoned,  shall  be  the  same  as  if  fmal  judgment  had 
been  entered  by  default,  Avithout  any  appearance  of  the  defendant. 

§  2-137. — Y/hen  any  writ  of  attachment  shall  be  executed  and  returned,  if  the 
defendant  be  not  summcned,  the  clerk  of  the  court  shall  cause  a  notice  to  be  p>ub- 
lishcd,  once  a  vi-eek  for  four  weeks,  in  some  newspaper  published  within  the  county 
or  in  some  convenient  county,  and  having  a  circulation  in  the  county  in  which  the 
suit  is  pending,  stating  the  issuance  of  such  attachment,  at  whose  suit,  against 
whose  estate,  for  what  sum,  and  in  what  court  the  same  is  jiending,  and  that  unless 
the  defendant  appear  on  the  fh-st  day  of  the  next  succeeding  term  of  the  said  court, 
and  plead  to  said  action,  judgment  will  be  entered,  and  the  estate  attached  will  be 
sold.  Such  publication  may  be  made  before  or  after  the  return  term  of  the  court: 
Provided,  that  in  cases  cf  attachment  against  persons  residing  out  of  this  state,  the 
creditor,  his  agent  or  attorney,  shall  file  with  the  clerk  his  affidavit,  if  the  allidavit 
for  the  attachmer-t  does  not  contain  such  statement,  showing  the  post-olSce  of  the 
defendant,  or  that  he  has  made  diligent  inquiry  to  ascertam  it  without  success;  and 
if  the  poct-ofUco  shall  be  stated,  the  clerk  shall  send  by  mail  to  such  defendant,  at 
his  post-office,  a  copy  of  such  notice,  and  shall  make  it  appear  to  the  court  that  he 
has  dene  so,  before  judgment  sh:dl  be  rendered  on  publication  of  notice,  and  for 
a  failure  of  duty  in  this  respect,  the  clerk  may  be  punished  as  for  a  contempt,  and 
shall  be  guilty  of  a  misdemeanor,  and  be  punishable  accordingly. 

§  2438. — Such  publication  of  notice  shall  not  be  necessary,  if  it  shall  be  served 
on  tho  non-resident  defendant,  and  proof  of  such  service  be  made  as  provided  for 
in  case  cf  non-resident  defendants  in  chancery,  but  such  proof  of  service  of  notice 
shall  be  as  effectual  as  if  such  defendant  had  been  served  with  a  summons. 

§  2439. — The  notice  of  the  attachment,  Avhich  the  clerk  is  required  to  cause  to 
be  published,  may  be  in  the  following  form,  or  to  that  effect,  to  wit: 

"To :  An  attachment  at  the  suit  of ,  against  your  estate,  for 

dollars,  returnable  before  the  circuit  court  of  county,  Mississippi,  has  been 

executed,  and  is  now  pending  in  said  court;  and  unless  you  appear  before  said  court 

on  the ilonday  of ,  188 — ,  and  plead  to  said  action,  judgment  will  be 

entered,  and  the  estate  attached  wiU  be  sold. 
,  188—.  ,  Clerk." 

§  2440. — If  there  should  be  no  newspaper  published  within  the  county  in  which 
the  attachment  is  pending,  or  in  a  convenient  county,  such  notice  shall  be  ported 
at  the  door  of  the  court-house  of  the  county,  and  that  shall  be  instead  of  publica- 
tion in  a  newspaper. 

§  2441. — The  declaration  may  be  filed  on  or  before  the  return  day  of  the  attach- 
ment or  before  any  order  of  non  pros,  be  taken,  and  the  defendant  shall  i)lcr.d 
thereto,  as  in  other  cases,  er.cept  that  when  he  has  pleaded  in  abatement  of  the 
attachment,  he  shall  not  plead  to  the  action  until  the  issue  made  by  the  jilea  in 
abatement  has  been  disposed  of. 


586  MISSISSIPPI. 

"GAE^^SHsrE^^'  A^'D  proceedings  thereon. 

§  2442. — The  manner  of  summoning  a  garnishee  shall  be  to  read  to  him  the  writ 
of  attachment,  if  he  requires  it,  and  to  inform  him  that  he  must  appear  at  the 
court  to  which  the  •writ  of  attachment  is  returnable,  there  to  answer,  on  oath,  in 
writing,  what  he  is  indebted  or  was  indebted  to  the  defendant  ia  the  attachment, 
at  the  time  of  the  summoning  of  such  garnishee,  or  since  that  time,  or  what  effects 
of  said  defendant  he  has  in  his  hands,  or  had  at  the  time  of  such  simimons,  or  has 
had  since,  and  what  other  persons,  to  his  knowledge  or  belief,  are  indebted  to  said 
defendant  or  have  effects  of  his  in  their  hands;  and  'a return  by  the  officer  executing 
it,  on  the  attachment,  that  he  has  summoned  certain  persons,  naming  them,  as 
garnishees,  shall  be  a  sufficient  return  of  the  summoning  of  such  garnishees. 

§  2443. — It  shall  not  be  necessary  to  furnish  a  garnishee  with  a  copy  of  the  writ 
of  attachment,  but  he  may  demand  and  receive  from  the  officer  summoning  him  a 
notice  in  writing  of  the  answer  he  is  required  to  make  as  above  set  forth;  and  it 
shall  be  the  duty  of  the  officer,  upon  such  demand^  to  deliver  to  the  garnishee  such 
written  summons. 

§  2444. — Garnishees  shall,  in  all  cases,  answer  under  oath,  in  writing,  within 
the  three  first  days  of  the  return  term,  unless  the  court,  for  cause  shown,  shall 
grant  fiurther  time;  and  if,  upon  the  answer  or  examination  of  any  garnishee,  it 
shall  appear  that  there  is  any  estate  of  the  defendant  in  the  hands  of  any  person 
not  simimoned,  an  alias  attachment  may  at  once  be  issued,  to  be  levied  on  the  prop- 
erty in  the  hands  of  such  person,  or  he  may  be  summoned  as  a  garnishee  and  shall 
appear  and  answer,  and  be  liable,  as  other  garnishees. 

§  2445. — If  a  garnishee  admits  an  indebtedness  not  then  due,  execution  shall  be 
stayed  until  its  matm'itj';  and  if  he  admits  the  possession  of  goods  or  chattels  of 
the  defendant,  not  seized  by  the  sheriff,  such  goods  or  chattels  shall  be  delivered  to 
the  sheriff,  unless  the  garnishee  shall  give  bond  for  the  forthcoming  thereof,  as 
hereinbefore  iDrovided. 

§  2446.-^ When  any  gamishpe,  duly  summoned,  shall  fail  to  appear  and  dis- 
cover, as  by  this  chapter  directed,  the  court  shall  enter  a  judgment  against  him 
for  the  amount  of  the  plaintiff's  demand,  and  all  costs,  and  such  judgment  shall  be 
final,  unless  cause  be  shown  to  the  contrary  during  the  same  term,  and  execution 
shall  issue  thereon:  Provided,  any  such  garnishee  may  answer  under  oath,  to  be 
certified  by  any  person  authorized  to  admiaister  an  oath,  and  forward  the  answer 
to  the  com-t  in  which  said  suit  is  pending. 

§  2447. — If  a  garnishee  in  attachment  shall  i)ay  over  or  deliver,  in  pursuance  of 
the  judgment  or  process  of  the  court,  any  money  or  property,  which  has  been  due, 
or  belonging  to  the  defendant  before  notice  of  any  sale,  assignment  or  transfer 
thereof,  by  the  defendant,  to  any  other  person,  such  garnishee  shall  not  thereafter 
be  liable  for  said  debt  or  pro^Dcrty  to  the  vendee  or  assignee  thereof. 

§  2448. — The  garnishee  shall  be  allowed  for  his  attendance,  out  of  the  debt  or 
effects  in  his  possession,  or  against  the  plaintiff  in  attachment,  in  case  there  be  no 
debt  or  effects  in  his  possession,  provided  he  shall  \m.t  in  his  answer  at  the  return 
term  of  the  attachment,  within  the  time  prescribed  by  law,  the  pay  and  mileage  of 
a  juror;  and  in  exceptional  cases,  rendering  it  proper,  the  com-t  may  allow  the  gar- 
nishee reasonable  compensation  additional  to  the  foregoing,  and  to  be  obtained  in 
the  same  way. 

§  2449. — When  a  garnishee,  by  his  answer,  or  at  any  time  before  or  after  final 
judgment  against  him,  shall  allege  that  he  has  been  notified  that  another  person 
claims  title  to  or  an  interest  in  the  debt  or  property  which  has  been  admitted  by 
him,  or  found  by  a  jury  to  be  due,  or  to  be  in  his  j)ossession,  the  court  shall  suspend 
all  further  proceedings,  and  cause  a  ci'«ation  to  issue  to  the  person  so  claiming,  to 
appear  at  the  next  term  of  the  com-t,  and  contest  with  the  plaintiff  the  right  to 
such  money  or  property;  or,  if  such  claimant  be  a  non-resident,  publicr.tion  shall 
be  mad&  in  the  same  manner  as  against  non-residents  in  attachment.  [Amended 
Stats.  1884,  p.  74.] 

§  2450. — If  the  claimant  fail  to  appear,  the  court  shall  adjudge  the  money  or 
property  to  the  plaintiff.  If  he  ajjpear,  he  shall  propound  his  claim  to  the  debt  or 
disputed  j)roperty,  in  ■miting,  under  oath  or  affii'mation,  and  the  plaintiff  may 
take  issue  thereon,  and  the  same  shall  be  tried  and  determined  as  other  causes  in 
said  court,  if  the  issue  be  found  in  favor  of  the  plaintiff;  if  found  for  the  claimant, 
judgment  must  be  rendered  in  favor  of  the  claimant  against  the  garnishee;  and  in 
all  such  cases  the  garnishee  shall  be  jDrotected  from  all  further  liability  to  either 
party,  in  respect  to  such  debt  or  property.     [Amended  Stats.  1SS4,  p.  74.J 


MISSISSIPPI.  587 

§  2451. — When  the  plaintiff  or  claimant  shall  allege  that  the  garnishee  has  not 
made  a  full  and  true  uiscovery  of  the  debt  due  by  him  to  the  defendant,  or  of  the 
property  in  liis  possession  belonging  to  the  defendant,  he  shall,  at  the  tei-m  wlicn  the 
answer  is  filed,  rnless  the  court  thall  giant  further  time,  controvert  the  sameinwritr 
iug,  specifying  in  v/hat  particulars  he  believes  the  answer  to  be  incorrect.  The  court 
may  du-ect  a  jury  to  be  impanneleu  immediately,  unless  good  cause  be  shown  for  a 
continuance,  to  inquire  what  is  the  true  amount  due  from  such  garnishee  to  the 
defendant,  and  what  goods  or  chattels  are  in  his  possession  belonging  to  the  de- 
fendant; and  the  court  shall  g-rant  judgment  upon  the  verdict  of  the  jury,  as  if  the 
facts  found  had  been  confe.'ssed  by  the  garnishee  in  his  answer.  If  the  answer  of 
the  garnishee  be  found  true,  he  shall  recover  his  costs  against  the  plaintiff. 
[Amended  Stats.  1884,  p.  74.] 

§  24.52. — The  defendant  in  attachment  may  contest  the  answer  of  any  garnishee 
and  may  allege  that  the  garnishee  is  indebted  to  him  in  a  larger  sum  than  he  has 
admitted,  cr  that  he  holds  property  of  the  defendant  not  admitted  by  the  answer, 
and  thall  specify,  in  writing,  in  what  particulars  the  answer  is  untrue  or  defective; 
and  thereupon  an  issue  shall  be  made  up,  or  the  answer  and  exception  shall 
constitute  an  issue,  to  be  tried  bj''  a  jury;  but  this  controversy  shall  not  prevent  the 
plain tiif  from  taking  judgment  for  the  sum  admitted  by  the  garnishee,  or  for  the 
condemnation  of  the  projperty  admitted  to  be  in  his  hands. 

§  2453.— If  the  garnishee,  whose  answer  is  contested,  shall  not  be  a  resident  of 
the  county  in  which  the  suit  is  pending,  then,  upon  an  issue  being  made  upon  his 
f.nswer,  the  venue  for  the  trial  of  the  issiie  sliall  be  changed,  on  his  application,  to 
the  county  of  his  residence.  The  court  in  which  the  issue  is  tried,  shall  be  author- 
ized to  grant  new  trials  and  continuances,  as  in  other  cases,  and  the  verdict  of  the 
jury  shall  be  certified  by  the  clerk,  and  returned  with  the  issue,  to  the  court  in 
v.-hich  the  suit  is  pending,  and  judgment  shall  be  entered  thereuijon,  as  if  the  ver- 
dict had  there  been  found. 

§  2454. — If  the  issue  be  found  against  the  garnishee,  judgment  shall  be  rendered 
against  him  for  the  amount  of  money  or  property  in  his  hands  not  admitted  by 
him,  which  judgment  shall  L^e  in  favor  of  the  plaintiff,  if  necessary  to  satisfy  his 
judgment  or  claim  against  the  defendant,  or  in  favor  of  the  defendant,  if  the  judg- 
ment of  the  plaintiff  has  been  satisfied,  or  for  so  much  thereof  as  may  remain  after 
satisfjdng  said  judgment.     [Amended  Stats.  1884,  p.  74.] 

§  2455. — If  the  personal  property  attached,  or  any  part  thereof,  shall  have  been 
left  in  the  hands  of  the  garnishee,  on  his' giving  bond,  as  prescribed,  or  shall  have 
been  rejolevied  by  the  defendant,  the  jury  trying  the  issue  between  the  parties,  if 
they  find  for  the  plaintiff,  shall  a.ssess  the  value  of  the  property  so  left  in  the  hands 
of  the  garnishee,  cr  replevied  by  the  defendant,  as  well  as  the  debt  or  damages  due 
the  plaintiff;  and  if  the  value  of  the  i)roperty  shall  equal  the  amount  found  due  the 
plaintiff,  judgment  shall  be  entered  against  such  garnishee  and  his  sm-eties,  or 
against  the  defendant  and  his  sureties,  on  such  replevin  bond,  for  the  amount  of 
said  verdict;  and  if  the  value  of  the  property  be  less  than  the  amount  found  due 
the  plaintiff,  judgment  shall  be  entered  against  the  defendant,  for  the  amount-  of 
the  verdict,  and  against  the  sureties  in  his  replevin  bond,  or  against  the  garnishee 
and  his  sureties,  for  the  value  of  the  property  so  replevied,  or  left  in  the  hands  of 
such  garnishee;  and  if  judgment  by  default  shall  be  entered,  in  such  case,  against 
the  defendant,  a  writ  of  inquiry  shall  be  awarded,  to  assess  the  value  of  the  prop- 
erty so  replevied,  or  left  in  the  hands  of  the  garnishee;  and  on  the  execution 
thereof,  judgment  shall  be  entered,  as  above  provided.  In  all  cases  provided  for 
in  this  section,  the  judgment  against  the  sureties  of  the  defendant,  or  against  the 
garni.-hee  and  his  sureties,  shall  be  satisfied  and  discharged,  by  the  delivery  to  the 
sheriff  of  the  county,  of  the  property  replevied  or  left  in  the  hands  of  the  gar- 
nishee, within  ten  days  after  execution  on  such  judgment  shall  have  come  to  his 
hands;  and  such  sheriff  shall  sell  the  property  so  delivered  to  him,  and  apply  the 
proceeds  to  the  payment  of  the  execution;  and,  in  all  cases,  the  valuation  of  the 
P'roperty,  liy  the  officer  taking  such  bond,  shall  be  prima  facie  evidence  in  favor  of 
the  iJlaintiff,  of  the  value  of  the  iDroperty. 

§  245G.^]Nro  final  judgment  upon  a  garnishment  shall  go  against  a  surety  or  ac- 
commodation indorser,  until  judgTnent  shall  go  against  the  principal,  and  the  pre- 
cetling  indorsers  or  co-sureties,  who  may  be  liable  to  judgment,  if  they  be  residents 
of  this  state. 

§  2457. — Executors  and  administrators  may  be  garnished  for  a  debt  due  by  their 
testator  or  intestate  to  the  defendant;  but  no  judgment  shall  be  entered,  in  such 
case,  against  an  executor  or  administrator,  until  the  lapse  of  six  months  after  the 
gi-ant  of  his  letters;  and  they  may  be  garnished  as  having  efi'ects  due  to  legatees  or 


588  MISSISSIPPI. 

distributees,  but  no  jud.^ment  shall  be  rendered  against  ttem  in  such  case,  except 
with  their  consent,  until  a  linal  settlement  of  the  estate. 

§  '2ii>S. — If  any  garnishee  shall  die,  like  i^roceedings  may  be  had  as  provided  for 
in  case  of  the  death  of  a  party  in  any  action. 

§  2  1j9.  When  any  crecUtor,  whose  debt  is  not  due,  shall  make  affidavit  of  any 
of  the  tl:reo  last  p.'irticulara  specified  in  this  act  a-3  grounds  for  an  attachment,  or 
that  he  has  just  cause  to  suspect,  and  verily  believes,  that  his  debtor  will  remove 
himself,  or  Lis  ejects,  out  of  the  state,  before  the  said  debt  will  become  payable, 
with  intent  to  hinder,  delay  or  defraud  his  creditors,  or  that  he  hath  removed,  with 
like  intent,  leaving  property  in  this  state,  and  shall  give  bond,  as  in  other  case"!,  he 
may  obtain  an  attachment  in  the  county  where  the  debtor  resides,  or  last  resided, 
or  where  his  property  may  bo  found;  which  attachment  shall  be  issued,  executed 
and  returned,  and  the  like  i^roceedings  had  thereon,  as  in  other  cases  of  attachment; 
and  if  the  debtor  shall  not,  on  or  before  the  return  day  thereof,  enter  into  bond  to 
the  plaintiH,  in  double  the  sum  due,  with  sufficient  securitj-,  for  the  payment  of  the 
said  debt,  when  it  shall  become  i^ayable,  and  the  costs  of  the  attachment,  the  court, 
on  due  proof  of  the  justice  thereof,  shall  grant  judgment,  as  in  other  cases  of  at- 
tachment; and  on  giving  such  bond,  the  same  shall  be  handed  over  to  the  said 
plaintifif,  and  the  attachment  shall  thereupon  be  discharged.  When  judgment 
shall  be  rendered,  execution  against  any  garnishee  indebted  to  the  defendant  thall 
be  stayed  until  the  claim  of  the  plaintiff,  or  garnishee's  debt  to  the  defendant,  shall 
become  due,  and  the  goods  and  property  attached  shall  be  sold  on  a  credit,  until 
the  time  when  the  plaintiff's  claim  shall  be  payable.  The  sheriff,  or  other  officer 
selling  such  property,  shall  take  bond  from  the  i^m-chasers,  payable  to  the  x^Iaiutiff 
in  the  attachment,  for  the  amount  of  his  debt,  interest  and  costs,  which  bond  shall 
be  returned,  with  the  execution,  and,  if  not  paid  at  maturity,  shall  have  the  fores 
and  effect  of  a  judgment,  and  execution  may  issue  thereon,  as  on  a  judgment  of  a 
court  of  record;  and  where  the  property  shall  sell  for  more  than  the  debt,  interest 
and  costs,  the  ofhcer  shall  take  a  bond  for  the  surplus  to  the  defendant,  and  deliver 
the  same  to  him;  but  no  more  i^roperty  shall  be  sold  than  is  necessary  to  satisfy 
the  judgment,  except  where  the  j^roperty  cannot  be  div^ided,  and  the  officer  making 
the  sale  shall  only  be  entitled  to  commissions  on  the  amount  of  the  plaintiff's  de- 
mand, and  the  costs  and  commissions  shall  be  included  in  the  bond  or  bonds,  taken 
to  the  plaintiff,  who  .shall  be  liable  thei-efor  to  the  officers  of  the  court.  If  the  de- 
fendant chall  have  replevied  the  proi^erty,  execution  against  the  defendant  and  the 
sureties  in  the  replevin  bond  shall  be  stayed,  tmtil  the  plaintiff's  claim  becomes  due 
and  payable. 

§  2430. — All  the  provisions  of  law,  in  relation  to  third  persons  claiming  property 
levied  on  by  virtue  of  a  writ  oi  fieri  facias,  shall  extend  and  apply  to  claimants  of 
property  levied  on  by  virtue  of  writs  of  attachment:  Providtd,  hovKvcr,  that  any 
person,  other  than  the  defendant,  claiming  property  attached,  may  interplead  with- 
out giving  bond,  but  the  property  attached  shall  not  thereby  be  replevied,  and  a 
trial  of  tiio  right  of  property  shall  not  be  had  until  after  judgment  in  favor  of  the 
plaintiff  in  the  attachment  suit. 

§  24G1. — When  a  suit  shall  have  been  commenced,  the  plaintiff  may  obtain 
an  attachment  against  the  defendants,  or  one  or  more  of  them,  on  making  affidavit 
and  giving  bond  as  required  in  other  cases  of  attachment,  which  attachment  shall 
be  granted  and  issued  by  the  same  officei-s,  and  executed  and  returned,  and  the  like 
proceedings,  as  far  as  applicable,  shall  be  had  thereon,  as  in  other  cases  i:)rovided 
for  by  this  act;  and  the  affidavit,  bond  and  attachment,  when  retm-ned,  shall  be 
filed  with  the  iwpers  in  the  original  suit,  and  constitute  a  part  thereof,  and  the 
original  suit  shall  not  be  delayed  thereby.  But,  if  the  plaintiff  shall  obtain  judg- 
ment in  the  original  suit,  he  shall  have  judgment  in  the  attachment,  as  in  other 
attachments. 

§  24G2. — ^Vhen  goods  and  chattels  levied  upon,  under  an  attachment,  are  in 
danger  of  immediate  waste  and  decay,  the  officer  holding  them  shall  sell  them  to 
the  highest  bidder,  for  cash,  after  a  written  notice,  posted  at  three  pubhc  places  in 
the  supervisor's  district  where  the  goods  may  be,  for  two  entire  days  bci'ore  t-ie 
sale;  or  on  such  other  or  shorter  notice  as  the  nature  of  the  goods  may  requh-e;  the 
proceeds  of  such  sale  shall  be  held  by  the  officer,  to  abide  the  result  of  the  suit,  un- 
less replevied.  The  o\vnerof  such  goods  may  reple\y  the  s.nme,  as  in  other  cases, 
at  any  time  before  such  sale  occm-s,  and  after  such  salt  the  money  .shall  represent 
the  goods. 

§  24G3. — 'When  an  officer  shall  levy  an  attachment  on  live  st<jck  of  any  kind, 
he  shall  sell  the  same,  for  cash,  on  such  notice  ind  at  such  place  as  such  personal 
roperty  is  required  to  be  sold  imder  execution;  the  proceeds  of  such  sale  shall  be 
eld  to  abide  the  tinal  result.     Defendant  may  replevy  the  property  any  time  be- 
fore the  sale,  and  the  proceeds  of  the  sale  after  it  occurs. 


I 


MISSISSIPPI.  580 

§  24C4. — WTien  it  shall  appear  to  the  court,  on  exceptions  taken  by  the  defend- 
ant, or  otherwise,  that  the  sureties  on  any  attachment  bond  are  insuCcient,  the 
court  fJiall  direct  the  plaintiCf  to  give  a  new  bond  with  good  and  sufficient  security; 
and  cuch  bend  thcAl  be  as  valid,  in  all  respects,  as  the  original  bond;  and  if  the 
plaintiff  shall  fail  to  give  a  new  bond,  within  the  time  required  by  the  co'jrt,  the 
attachment  shall  be  dismissed;  and  in  all  cases  where  an  attachment  bond  or  affi- 
davit may  bo  defective  in  any  respect,  or  may  be  lost  or  destroyed,  tho  plaintiff 
ehall  bo  allowed  to  lile  a  nev/  affidavit  and  bond,  which  shall  be  in  all  respects  aa 
valid  and  binding  as  if  given  at  the  commencement  of  suit. 

§  24G5. — If  the  bond  or  sureties  given  by  the  garnishee  or  the  defendr.nt,  as 
hereinbefore  provided,  be  insufficient,  then  such  sheriff  or  other  officer  shall  be 
subject  to  the  same  judgment  with  the  surety  in  such  bond,  as  if  he  v.'cre  co-surety 
thereon.  And  the  court  or  judge,  on  being  satisfied  that  such  bond  is  not  a  suf- 
ficient security,  may  order  process  to  seize  the  property  for  v/hich  the  bond  v/as 
given,  and  when  seized  it  shall  be  dealt  with  as  provided  by  law  upon  its  seizure 
in  the  first  instance  under  attachment. 

§  24CG. — If  the  defendant  shall  die  after  service  of  the  writ  of  attachment,  the 
action  shall  not  thereby  be  abated,  but  shall  be  carried  on  to  judgnient,  sale, 
transfer,  and  final  determination,  as  if  the  defendant  were  still  aliv-e,  and  such 
death  had  not  occurred;  and  all  proceedings  and  convej^ances  in  such  cases  are 
hereby  declared  to  be  as  valid  and  effectual  in  law  as  if  had  and  made  in  the  life- 
time of  such  defendant. 

§  24C7. — If  the  defendant  shall  not  appear  and  plead  to  the  action,  in  pursuance 
of  the  notice,  the  court,  on  i^roof  of  the  publication  thereof,  shall  give  judgment 
against  him  by  default,  and  award  a  ^n-it  of  inquiry,  if  necessary;  but  on  such 
judgment  by  default  no  execution  shall  i;:si;e,  except  against  the  pi-operty  en  which 
the  attachment  has  been  served,  or  against  a  garnishee  who  shall  have  money  or 
property  in  his  hands  belonging  to  the  defendant. 

§  2'GS. — All  the  estate,  real  and  personal,  attached  and  not  replevied  as  afore- 
said, and  the  stock,  share  or  interest  of  the  defendant  in  any  copartnership  or  in- 
corijorated  company,  shall  be  sold  and  disposed  of  toward  the  satisfaction  of  the 
plaintiff's  judgment,  in  the  same  manner  as  property  taken  in  execution  on  a  ■UTit 
of  Jicri  facias;  and  all  goods  and  chattels  replevied  by  the  defendant,  or  found  in 
the  hands  of  any  garnishee  belonging  to  such  defendant,  shall  be  liable  to  satisfy 
such  judgment,  and  shall  be  delivered  to  the  sheriff,  or  other  officer,  and  sold  in 
like  mi^nner;  and  judgment  shall  be  entered  iip,  and  execution  awarded,  against 
every  garnishee,  for  all  sums  of  money  due  by  him  to  the  defendant,  or  in  his 
custody  or  possession,  for  the  use  of  such  defendant,  or  so  much  thereof  as  shall 
be  sufficient  to  satisfy  the  debt  of  the  plaintiff  and  all  costs. 

§  2469. — After  judgment  obtained  by  the  plaintiff  by  default  upon  any  attach- 
ment against  non-resident  or  absent  defendants,  upon  proof  of  publication  only, 
the  plaintiff  shall,  before  any  sale  be  made  or  execution  issued  against  any  gar- 
nishee, enter  into  bond  with  sureties,  to  be  approved  by  the  court,  or  the  clerk  in 
vacation,  payable  to  the  defendant,  in  double  the  amount  of  the  judgment,  condi- 
tioned that  if  the  defendant  shall,  within  a  year  and  a  day  next  following,  come 
into  court  and  disprove  or  avoid  the  debt  recovered  by  the  plaintiff  against  him, 
then  the  plaintiff  shall  restore  to  the  said  defendant  the  money  he  may  have  re- 
ceived toward  the  satisfaction  of  his  demand,  or  so  much  thereof  as  shall  be  dis- 
proved or  avoided;  which  bond  shall  bo  filed  with  the  papers  in  the  cause,  and  any 
sale  made  without  such  bond  being  given  as  aforesaid  shall  be  utterly  void. 

§  2470. — In  the  event  that  property  be  in  the  hands  of  an  officer,  levied 
upon  under  such  judgments  as  those  named  in  the  last  preceding  section,  and  the 
plaintiff  shall  fail  and  refuse  for  ten  days  to  execute  the  bond  named  in  said  sec- 
tion, after  due  notice  in  writing,  served  by  the  officer  holding  such  property,  then 
the  said  officer  shall  sell  said  property,  according  to  law,  and  hold  the  proceeds  for 
a  year  and  a  day,  and  then  pay  them  to  the  party  entitled  to  receive  the  same,  or 
sooner  if  he  shall  execute  the  required  bond. 

§  2471. — Attachments  may  in  all  cases  be  issued  and  executed  on  Sunday;  and 
may  be  executed  in  any  part  of  the  county,  by  any  constable  of  the  county,  or  by 
the  constable  or  police  officer  of  any  incorporated  city  or  to'wn,  in  the  same  manner 
as  by  the  sheriff  of  the  county;  and  in  cases  of  emergency,  and  when  a  sheriff,  or 
his  deputy,  or  a  constable,  or  police  officer  cannot  be  had  in  time,  the  officer  issu- 
ing an  attachment  may  appoint  some  reputable  person  to  execute  such  attachment, 
and  such  officer  shall  be  liable  on  his  bond  and  individually,  for  the  consequence 
of  appointiiig  an  insolvent  or  incompetent  person  for  such  service. 


590  MISSOURI. 

ATTACHMENT  IN  CHANCEET. 

§  1898. — "WTien  a  bill  shall  be  filed  for  an  attachment  of  the  effects  of  a  non-resi- 
dent, absent  or  absconding  debtor,  in  the  hands  of  persons  in  this  state,  or  of  the 
indebtedness  of  the  defendant  in  this  state  to  such  non-resident,  absent  or  abscond- 
ing defendant,  it  shall  be  sufficient  to  bind  such  effects,  or  such  indebtedness,  that 
the  summons  for  the  defendants  resident  in  this  state  shall  have  stated  in  or  in- 
dorsed upon  it  the  nature  and  object  of  such  suit,  and  that  it  is  to  subject  the  ef- 
fects in  the  hands  of  such  defendants,  and  the  indebtedness  of  such  defendants  to 
Buch  non-resident,  absent  or  absconding  defendant,  to  the  demand  of  the  complain- 
ant; or  instead  of  such  statement  on  the  summons,  a  copy  of  such  bill  may  be 
Berved  with  the  summons,  and  shall  bind  said  effects  or  indebtedness,  from  the 
time  of  such  service. 

§  1899. — If  land  of  the  non-resident,  absent  or  absconding  debtor  be  the  subject 
of  such  suit,  a  writ  of  attachment  shall  be  issued,  and  shall  be  levied  1  jy  the  sheriff 
or  other  officer,  as  such  writs  at  law  are  required  to  be  levied  on  land,  and  shall 
have  like  .effect. 

§  1900. — Writs  of  sequestration  may  be  issued  for  personal  property  in  such 
cases,  as  in  others. 

§  1901. — The  said  non-resident,  absent  or  absconding  debtor  shall  be  made  a 
party  to  such  suit  by  pjubUcation  of  summons,  as  in  other  cases,  and  may  appear 
and  plead,  demur  or  answer,  to  the  bill,  without  giving  security;  but  the  lien  of 
the  creditor  upon  the  property  attached  shall  not  be  affected  thereby.  If  such 
debtor  shall  not  appear,  and  give  satisfactory  security  for  performing  the  decree, 
the  court  shall  have  power  to  make  any  necessary  orders,  and  to  recjuire  security, 
to  restrain  the  defendants  within  this  state  from  paying,  conveying  away  or  secret- 
ing the  debts  by  them  owing  to,  or  the  effects  in  their  hands  belonging  to  such 
non-resident,  absent,  or  absconding  defendant,  and  may  order  such  debts  to  be 
paid,  or  such  effects  to  be  delivered  to  the  complainant,  on  his  giving  security  for 
the  return  thereof,  in  such  manner  as  the  court  may  direct. 

§  1902. — If  a  decree  shall  be  rendered  in  such  case  without  the  appearance  of 
such  absent  debtor,  the  court,  before  any  proceedings  to  satisfy  said  decree,  shall 
require  the  complainant  to  give  security  for  abiding  such  further  orders  as  may  be 
made,  for  the  restoring  the  estate  or  effects  to  the  absent  defendant,  on  his  appear- 
ing and  answering  the  bill;  and  if  the  complainant  shall  not  give  such  security,  the 
effects  shall  remain  under  the  direction  of  the  court,  in  the  hands  of  a  receiver,  or 
otherwise,  for  so  long  a  time  as  the  court  shall  appoint,  and  shall  then  be  disposed 
of  as  the  com't  may  direct. 

Chancery  courts  have  jurisdiction — Page  507,  sec.  1832. 

Before  justices  of  the  peace— Pages  609,  670,  sees.  2472-2478,  and  Stats.  1884, 
p.  78. 

Damages  in  attachment  cases — Stats.  1884,  pp.  76-77,  sees.  1-5. 

Attachment  for  rent— Page  373,  sees.  1301-1318,  1329,  1345-1348,  and  Stats. 
1882,  pp.  139,  140,  144. 

Exemptions— Page  357,  sees.  1244-1255,  and  Stats.  1882,  p.  113;  Stats.  1884, 
p.  80. 


MISSOURI. 

[Eeyised  Statutes,  1879.] 


CHAPTER  VI. 

OF  ATTACHMENT. 


§  398. — In  any  court  having  competent  jurisdiction,  the  plaintiff  in  any  civil 
action  may  have  an  attachment  against  the  property  of  the  defendant,  or  that 
of  any  one  or  more  of  several  defendants,  in  any  one  or  more  of  the  following 
cases: 

I.  Where  the  defendant  is  not  a  resident  of  this  state. 


MISSOURI.  591 

IT.  Wtere  the  defendant  is  a  corporation,  whose  chief  office  or  place  of  business 
is  out  of  this  state. 

III.  Where  the  defendant  conceals  himself,  so  that  the  ordinary  jirocess  of  law 
cannot  be  served  upon  him. 

IV.  Where  the  defendant  has  absconded  or  absented  himself  from  his  usual 
place  of  abode  in  this  state,  so  that  the  ordinary  jirocess  of  law  cannot  be  served 
upon  him. 

V.  Where  the  defendant  is  about  to  remove  his  property  or  effects  out  of  this 
state,  with  the  intent  to  defraud,  hinder  or  delay  his  creditors. 

VI.  Where  the  defendant  is  about  to  remove  out  of  this  stg-te,  with  the  intent 
to  change  his  domicile. 

Tii.  Where  the  defendant  has  fraudulently  conveyed  or  assigned  his  property 
or  effects,  so  as  to  hinder  or  delay  his  creditors. 

VIII.  Where  the  defendant  has  fraudulently  concealed,  removed  or  disposed  of 
his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors. 

IX.  Where  the  defendant  is  about  fraudulently  to  convey  or  assign  his  property 
or  effects,  so  as  to  hinder  or  delay  his  creditors. 

X.  W^liere  the  defendant  is  about  fraudulently  to  conceal,  remove  or  dispose  of 
his  property  or  effects,  so  as  to  hinder  or  delay  his  creditors. 

XI.  Where  the  cause  of  action  accrued  out  of  this  state,  and  the  defendant  has 
absconded,  or  secretly  removed  his  property  or  effects  into  this  state. 

XII.  Where  the  damages  for  which  the  action  is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony  or  misdemeanor,  or  for  the  seduction  of  any 
female. 

XIII.  Where  the  debtor  has  failed  to  pay  the  price  or  value  of  any  article  or 
thing  delivered,  which,  by  contract,  he  was  bound  to  pay  upon  thb  delivery. 

XIV.  Where  the  debt  sued  for  was  fraudulently  contracted  on  the  part  of  the 
debtor.     [G.  S.  561,  §  1.] 

§  399. — An  attachment  may  issue  on  a  demand  not  yet  due  in  any  of  the 
cases  mentioned  in  the  preceding  section,  except  the  first,  second,  third  and  fourth; 
but  no  judgment  shall  be  rendered  against  the  defendant  until  the  maturity  of  the 
demand.     [G.  S.  562,  g  2.] 

§  400. — An  affidavit  alleging  any  one  of  the  causes  set  forth  in  the  several 
subdivisions  of  section  398  of  this  chapter,  in  the  language  of  such  subdivisions, 
shall  be  held  good  and  sufficient.     [G.  S.  562,  §  3.] 

§  401. — Attachments  may  issue  from  a  court  of  record  for  a  sum  less  than 
fifty  dollars,  and  not  less  than  five  dollars,  when  in  addition  to  the  affidavit  herein- 
after required,  it  shall  be  stated  by  the  affiant  that  the  defendant  has  not,  to 
aff.ant's  knowledge,  any  goods,  chattels,  effects  or  credits,  within  the  state,  lia- 
ble to  attachment  issued  by  a  justice  of  the  peace.     [G.  S.  562,  §  4.] 

§402. — Any  plaintiff  wishing  to  sue  by  attachment  may  file  in  the  clerk's  of- 
fice of  the  court  in  which  the  attachment  is  instituted,  or  with  the  justice  before 
whom  the  suit  is  brought,  a  petition  or  other  lawful  statement  or  exhibit  of  his 
cause  of  action,  and,  except  in  suits  instituted  by  tlie  state  or  a  county  in  its  o^\^l 
behalf,  shall  also  file  an  affidavit  and  bond;  and  thereupon  such  plaintiff  may  sue 
out  an  original  attachment,  if  in  the  circuit  court,  against  the  lands,  tenements, 
goods,  moneys,  effects  and  credits  of  the  defendant,  in  whose  hands  soever  the  same 
may  be;  or  if  before  a  justice  of  the  peace,  against  the  goods,  moneys,  effects  and 
credits  of  the  defendant,  wheresoever  found  within  the  county.  [G.  S.  562,  §  5, 
amended.] 

§  403.  The  affidavit  shall  be  made  by  the  plaintiff,  or  some  person  for  him, 
and  shall  state  that  the  jjlaintiff  has  a  just  demand  against  the  defendrait,  and  that 
the  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover,  after  allowing 
all  just  credits  and  set-offs,  is dollars,  and  that  he  has  good  reason  to  be- 
lieve, and  does  believe,  in  the  existence  of  one  or  more  of  the  causes  which,  ac- 
cording to  the  ])rovisions  of  section  398  of  this  chapter,  would  entitle  the  plaintiff 
to  sue  by  attachment.     [G.  S.  562,  §  6.] 

§  404. — The  bond  shall  be  executed  by  the  plaintiff,  or  some  responsible  per- 
son as  principal,  and  one  or  more  sureties,  resident  householders  of  the  county 
in  which  the  action  is  to  be  brought,  in  a  sum  at  least  double  the  amoimt  sworn  to 
in  the  affidavit,  payable  to  the  state  of  Missouri,  conditioned  that  the  |)laintiff 
ishall  prosecute  his  action  without  delay  and  with  effect,  refund  all  sums  of  money 
that  may  be  adjudged  to  be  refunded  to  the  defendant,  or  found  to  have  been 
received  by  the  plaintiff  and  not  justly  due  to  him,  and  pay  all  damages  and  costs 
that  may  accrue  to  any  defendant  or  garnishee,  by  reason  of  the  attachment,  or 
any  process  or  proceeding  in  the  suit,  or  by  reason  of  any  judgment  or  process 
thereon.    [G.  S.  562,  §  7.] 


592  MISSOURI. 

§  405. — The  clerk  shall  judge  of  the  sufficiency  of  the  penalty  and  the  secu- 
rity in  the  bond;  if  they  be  approved,  he  shall  indorse  his  approval  thereon,  and 
the  same,  together  with  the  affidavit  and  petition,  or  other  lawful  statement  of  the 
cause  of  action,  shall  be  filed  before  an  attachment  shall  be  issued.    [G.  S.  5C3,  §  8.] 

§  40G. — If,  at  any  time,  pending  a  suit  by  attachment,  it  shall  appear  to  th? 
court  before  which  the  action  is  pending  that  the  bond  given  by  the  plaintiff  ia 
insufficient,  or  that  any  surety  therein  has  died,  or  has  removed  from  the  state,  or 
has  become  or  is  likely  to  become  insolvent,  the  court  may  order  another  bond 
and  such  fm-ther  security  to  be  given  as  shall  seem  necessary,  five  days'  i^revious 
notice,  in  %\Titing,  having  been  given  to  the  plaintiff,  his  agent  or  attorney,  of  the 
application  for  such  order.     [G.  S.  563,  §  9.] 

§  407.— If  the  plaintiff  shall  fail  to  comply  with  such  order,  within  ten  days 
after  the  same  shall  be  made,  the  suit  shaU  be  dismissed  at  his  cost.  [G.  S.  563, 
§10.] 

§  408. — The  bond  given  by  the  plaintiff,  or  other  person,  in  a  suit  by  attach- 
ment, may  be  sued  on  at  the  instance  of  any  party  injured,  in  the  name  of  the 
state,  to  the  use  of  such  party,  for  the  breach  of  the  condition  of  such  bond,  and 
the  damages  shall  be  assessed  thereon  as  on  bonds  with  collateral  conditions.  [G. 
S.  563,  §  11.] 

§  409. — In  any  suit  on  such  bond,  any  obligor  may  avail  himself  of  any  set- 
off he  may  have  against  the  i^arty  to  whose  use  the  suit  is  brought,  with  the  same 
effect  as  if  such  party  were  the  plaintiff;  and  if  such  set-off  shall  exceed  in  amount 
the  damages  proven  in  behalf  of  such  party,  judgment  shall  be  rendered  agaLust 
him,  in  favor  of  the  defendant  setting  up  the  set-off,  for  the  amount  of  the  excess 
and  all  i^roper  costs..     [G.  S.  563,  §  12.] 

§  410. — The  plaintiff  in  any  civil  action  which  shall  have  been  commenced  by 
summons,  and  without  original  attachment,  may,  at  any  time  pending  the  suit 
and  before  final  judgment,  sue  out  an  attachment  in  such  action,  on  filing  an  affi- 
da^dt  and  bond,  as  required  in  cases  of  original  attachment.     [G.  S.  563,  §  13.] 

§  411. — If,  at  any  time  after  the  return  of  an  attachment,  it  shall  appear,  to 
the  satisfaction  of  the  court  or  clerk,  that  the  propertj',  effects  and  credits  at- 
tached will  not  be  sufficient  to  satisfy  the  amount  sworn  to  and  costs,  the  court  or 
clerk  may  award  other  writs  of  attachment,  until  sufficient  property,  effects  or 
credits  shall  be  attached  to  satisfj'  such  amount  and  costs.     [G.  S.  563,  §  14.] 

§  412. — Every  writ  of  attachment  sued  out  by  virtue  of  either  of  the  last  two 
sections,  shall  be  entitled  in  the  cause  pending,  and  be  in  aid  thereof.  [G.  S. 
653,  §  15.]  . 

§  413. — The  form  of  the  writ  shall,  as  well  as  may  be,  conform  to  that  of  origi- 
nal attachments,  reciting  briefly  the  circumstances,  except  that  the  clause  of  the 
summons  as  to  all  defendants  previously  summoned  shall  be  omitted.  [G.  S. 
563,  §  16.] 

§  414.— Such  writs  of  attachment  shall  be  issued,  served  and  retmmed  in  the 
same  manner,  and  the  like  proceedings  shall  be  had  thereon,  as  are  required  and 
allowed  on  original  attachments,  in  all  things,  as  near  as  may  be.  [G.  S.  563, 
§17.] 

§  415. — The  original  writ  of  attachment  shall  be  directed  and  delivered  to  the 
sheriff,  or  other  officer  authorized  by  law  to  serve  the  same,  and  shall  com- 
mand htm  to  attach  the  lands,  tenements,  goods,  chattels,  rights,  moneys,  credits, 
evidences  of  debt  and  effects  of  the  defendant,  or  so  much  thereof  as  will  be  suffi- 
cient to  satisfy  the  jilaintiff's  claim,  as  sworn  to,  Avith  interest  and  costs,  and  to 
summon  as  garnishees  all  persons  in  whose  hands  or  i^ossession  any  personal  prop- 
ert}',  rights,  credits,  evidences  of  debt,  effects  or  money  of  the  defendant  may  be, 
or  who  may  be  named  by  the  plaintiff  or  his  attorney  as  garnishees.  When  the 
action  is  commenced  by  attachment,  the  Avrit  shall  further  contain  a  summons  to 
the  defendant,  of  the  nature  and  effect  of  an  ordinary  summons,  to  appear  and 
answer  the  action  of  the  plaintiff.     [G.  S.  563,  §18.] 

§416. — Under  an  attachment,  the  officer  shall  be  authorized  to  seize,  as  at- 
tachable property,  the  defendant's  account-books,  accounts,  notes,  bills  of 
exchange,  bonds,  certificates  of  deposit,  and  other  evidences  of  debt,  as  well  as  his 
other  property,  real,  personal  and  mixed,  and  any  and  all  judgment  debts  of  the 
defendant,  as  well  where  the  judgment  or  judgments  may  exist  in  the  coiu-t  out  of 
which  such  writ  may  issue  as  where  the  same  may  exist  in  any  other  court  within 
the  jurisdiction  of  the  coiut  out  of  which  such  writ  may  issue;  but  no  property  or 
wages,  declared  by  statute  to  be  exempt  from  execution,  shall  be  attached,  except 


MISSOURI.  503 

in  the  case  of  a  non-resident  defendant,  or  of  a  defendant  who  is  ahoutto  move  out 
of  the  state,  with  intent  to  change  his  domicile.     [G.  S.  564,  §  19.] 

§  417. — Shares  of  stock  in  any  bank  or  other  corporation,  belonging  to  any 
defendant  in  any  writ  of  attachment,  may  be  attached  in  the  same  manner  as  tJie 
same  may  be  levied  on  under  execution.     [G.  S..  564,  §  20.] 

§  418. — "VMien  there  are  several  defendants,  who  reside  or  have  property  in 
different  counties,  and  when  a  single  defendant,  in  any  such  action,  has  jjroperty 
or  effects  in  different  counties,  separate  writs  may  issue  to  every  such  county. 
[G.  S.  564,  §  21,  amended.] 

§  419. — Original  writs  of  attachment  shall  be  issued  and  returned,  in  like 
time  and  manner  as  ordinary  writs  of  summons.     [G.  S.  5G4,  §  22.] 

§  420. — The  manner  of  serving  writs  of  attachment  shall  be  as  follows: 

I.  The  WTit  and  petition  shall  be  served  upon  the  defendant,  as  an  ordinary 
summons. 

II.  Garnishees  shall  be  summoned  by  the  sheriff  or  other  proper  officer,  declar- 
ing to  them  that  he  does  summon  them  to  apjjear  at  the  retiu-n  term  of  the  ■writ, 
to  answer  the  interrogatories  which  may  be  exhibited  by  the  plaintiff",  and  by  read- 
ing the  wi-it  to  them  if  required. 

III.  When  lands  and  tenements  are  to  be  attached,  the  officer  shall  briefly 
describe  the  same  in  his  return,  stating  the  quantity  and  situation,  and  declare 
that  he  has  attached  all  the  right,  title  and  interest  of  the  defendant  in  the  same, 
or  so  much  thereof  as  shall  be  .sufficient  to  satisfy  the  debt  and  interest,  or  dam- 
ages and  costs;  and  shall,  also,  file  in  the  recorder's  office  of  the  county  where  the 
real  estate  is  situated,  an  abstract  of  the  attachment,  showing  the  names  of  the 
parties  to  the  suit,  and  the  amoimt  of  the  debt,  the  date  of  the  levy,  and  a  descrip- 
tion of  the  real  estate  levied  on  by  the  same,  which  shall  be  duly  recorded  in  the 
land  records,  and  the  recording  paid  for  by  the  officer,  and  charged  and  collected 
as  other  costs;  and  the  officer  shall,  moreover,  give  notice  to  the  tenants,  if  any, 
at  least  ten  days  before  the  retiu-n  day  of  the  •writ,  and  state  the  fact  of  such 
notice  and  the  names  of  the  tenants  in  his  return. 

IV.  When  goods  and  chattels,  moneys  or  evidence  of  debt,  are  to  be  attached, 
the  officer  shall  take  the  same  and  keep  them  in  his  custody,  if  accessible;  and,  if 
not  accessible,  he  shall  declare  to  the  person  in  jjossession  thereof  that  he  attaches 
the  same  in  his  hands,  and  simamon  such  person  as  garnishee. 

v.  When  the  credits  of  the  defendant  are  to  be  attached,  the  officer  shall  de- 
clare to  the  debtor  of  the  defendant,  that  he  attaches  in  his  hands  all  debts  due 
from  him  to  the  defendant,  or  so  much  thereof  as  shall  be  sufficient  to  satisfy  the 
debt  and  interest  or  damages  and  costs,  and  simimon  such  debtor  as  garnishee. 
[G.  S.  564,  §23.] 

§  421. — When  property  of  the  defendant,  found  in  his  possession,  or  in  the 
hands  of  any  other  ijcrson,  shall  be  attached,  the  defendant  or  such  other  person, 
may  retain  the  possession  thereof,  by  giving  bond  and  secm-ity,  to  the  satisfaction 
of  the  officer  executing  the  vnrit,  to  the  sheriff,  his  successor  or  theii-  assigns,  in 
double  the  value  c;f  the  property  attached,  conditioned  that  the  same  shall  be  forth- 
coming when  and  where  the  court  shall  direct,  and  shall  abide  the  judgment  of 
the  court.     [G.  S.  565,  §  24.] 

§  422. — The  officer  executing  a  writ  of  attachment  shall  retiim,  ■with  the  writ, 
all  bonds  taken  by  him  in  virtue  thereof,  and  a  schedule  of  all  proioerty  and 
effects  attached.     [G.  S.  565,  §  25.] 

§  42.3. — If  the  officer  fail  to  return  a  good  and  sufficient  bond  in  any  case  where 
a  bond  is  required  by  law,  the  court  or  justice  may,  upon  motion  of  the  plaintiff, 
rule  the  officer  to  file  a  good  and  sufficient  bond,  to  be  judged  of  by  the  court  or- 
justice,  on  or  before  the  first  day  of  the  next  term  of  the  court,  or  law  day  of  the 
justice  to  which  the  writ  is  returnable;  and  in  default  thereof,  such  officer  shall  be 
held  and  considered  as  security  for  the  i:)erfoimance  of  all  acts  and  the  payment 
of  all  money  to  secure  the  performance  and  payment  of  which  such  bond  ought  to 
have  been  taken,  and  he  and  his  sureties  shall  be  liable  therefor  on  his  official 
bond;  but  no  such  motion  .shall  be  made  unless  at  the  return  term  and  within  the 
first  six  days  thereof,  or,  if  in  a  justice's  covu't,  on  the  law  day  aforesaid.  [G.  S. 
565,  §  26.] 

§  424. — When  property  shall  be  actually  seized  which  is  likely  to  perish  or  depre- 
ciate in  value  before  the  probable  termination  of  the  suit,  or  the  keeping  of  which 
would  be  attended  with  much  loss  or  expense,  the  court,  or  judge  in  vacation,  or 
justice  of  the  peace,  may  order  the  same  to  be  sold  by  the  oificer  having  charge  of 
the  proj^erty,  and  a  return  of  the  proceedings  thereon  to  be  made  by  the  officer  at 
II  Attacumejjt — 13. 


594  MISSOURI. 

a  time  to  be  fixed  therein,  and  the  sale  shall  he  conducted  in  like  manner,  as  near 
as  may  be,  as  sales  of  goods  under  writs  oi  fieri  facias.     [G-.  S.  5G5,  §  27.] 

§  425. — The  order  of  sale,  when  made  in  vacation,  shall  be  delivered  to  the  clerk 
of  the  court  and  filed  in  the  cause;  and  the  clerk  shall  deliver  to  the  ofl&cer  having 
charge  of  the  property  a  copy  of  every  order  of  sale,  whether  made  in  term  or 
vacation;  and  such  officer  shall  make  return  thereof  to  the  court,  at  such  time  as 
shall  bo  expressed  in  the  order,  showing  how  he  has  executed  the  same;  and  the 
proceeds  of  such  sale  phaU  be  paid  into  court  or  otherwise  disposed  of  as  the  court 
or  judge  may  order.     [G.  S.  565,  §  28.] 

§  ^6. — When  property  ia  seized  on  attachment,  the  court  may  allow  to  the  offi- 
cer having  charge  thereof  such  compensation  for  his  trouble  and  expenses  in  keep- 
ing the  same  as  shall  be  reasonable  and  just.     [G.  S.  565,  §  29.] 

§  427. — The  court,  or,  in  vacation,  the  judge,  may,  in  a  proper  case,  on  the 
application  of  the  plaintiff,  appoint  a  receiver,  who  shall  take  an  oath  faithfully  to 
discharge  his  duty,  and  shall  enter  into  bond  to  the  state  of  Missouri,  in  such  sum 
ai  the  court  or  judge  may  direct,  and  with  security,  approved  by  the  court  or 
judge,  for  the  faithful  performance  of  his  duty  as  receiver,  and  that  he  will  pay 
over  all  money  and  account  for  all  property  which  may  come  into  his  hands  by 
virtue  of  his  appointment,  at  such  times  and  in  such  manner  as  the  court  may 
direct.  This  bond  may  be  sued  on,  in  the  name  of  the  state,  at  the  instance  and 
to  the  use  of  any  party  injured.     [G.  S.  5G5,  §  30.] 

§  428. — When  notes,  bills,  books  of  account,  accounts,  or  other  evidences  of 
debt,  are  attached,  they  shall  not  be  subject  to  be  retained  upon  the  execution  of  a 
delivery  bond,  as  hereinbefore  provided,  but  shaU  be  delivered  to  the  receiver,  who 
ehall  proceed  with  diligence  to  settle  and  collect  the  same.  For  that  purpose  he 
may  comrftence  and  maintain  actions  on  the  same,  in  his  own  name;  but  in  such 
actions  no  right  of  defense  shall  be  impaired.     [G.  S.  566,  §  31.] 

§  429. — The  receiver  shall  forthwith  give  notice  of  his  appointment  to  the  persons 
indebted  to  the  defendant.  The  notice  shall  be  written  or  printed,  and  shall  be 
served  on  each  debtor,  by  a  coj^y  delivered  to  him,  or  left  at  his  place  of  residence 
or  business;  or,  if  he  reside  in  another  county,  by  copy  deposited  in  the  post-office, 
and  addressed  to  him  at  his  place  of  residence;  and,  from  the  date  of  such  service 
and  knowledge  thereof,  every  such  debtor  shall  stand  liable,  and  shall  account  to 
the  receiver  for  the  amount  of  monej's  and  credits  of  the  defendant  in  his  hands, 
or  due  from  him  to  the  defendant.     [G.  S.  5C6,  §  32.] 

§  430. — The  receiver  shall,  when  required,  report  his  proceedings  to  the  court, 
and  shall  hold  all  moneys  collected,  and  aU  property  received  by  him,  subject  to 
the  order  of  the  court.  He  shall  receive  such  compensation  as  the  court  may  allow. 
[G.  S.  506,  §  33.] 

§  431. — Until  a  receiver  is  appointed,  the  attaching  officer  shall  have  all  the 
powers  and  perform  all  the  duties  of  a  receiver  under  this  chapter,  and  may  com- 
mence and  maintain  actions  in  his  own  name,  as  such  officer,  on  debts  or  evi- 
dences of  debt  attached.  He  may,  in  such  case,  be  required  to  give  security  other 
than  his  official  bond;  but,  if  not  so  required,  the  sureties  in  his  official  bond  shall 
be  held  liable,  as  in  other  cases  of  his  official  action.     [G.  S.  566,  §  34.] 

§  432. — In  all  cases  not  specially  pro%"ided  for  by  this  chapter,  all  pleadings  and 
other  proceedings  in  attachment  causes  shall  conform  to  and  be  governed,  as  near 
as  may  be,  by  the  laws  regulating  the  practice  in  civil  cases;  and  the  respective 
courts  may  prescribe  by  rule  the  time  and  manner  of  interpleading,  of  exhibiting 
and  filing  papers,  or  taking  any  other  needful  steps  therein,  when  the  same  are 
not  prescribed  by  law ;  but  nothing  herein  contained  shall  be  construed  to  prevent 
the  defendant  from  pleading  to  the  merits  of  any  action  instituted  upon  a  demand 
not  due,  at  any  time  before  the  maturity  thereof.     [G,  S.  566,  §  35.] 

§  433. — When  the  defendant  has  been  served  with  the  writ,  or  appears  to  the 
action,  the  proceedings  in  the  cause  shall  be  the  same  as  in  actions  instituted  by 
summons  only,  and  the  judgment  and  execution  shall  hold,  not  only  the  property 
attached,  but  the  other  property  of  the  defendant.     [G.  S.  566,  §  36.] 

§  434. — MTien  the  defendant  shall  be  notified  by  publication,  as  directed,  and 
shall  not  appear  and  answer  the  action,  judgment  by  default  may  be  entered, 
which  may  be  proceeded  on  to  final  judgment,  in  like  manner  as  in  ordinary 
actions;  but  in  no  case  shall  a  judgment  be  rendered  against  the  defendant  for  a 
greater  amount  than  that  sv;om  to  by  the  plaintiff  at  the  time  of  obtaining  the 
attachment,  with  interest,  damages  and  costs.     [G.  S.  566,  §  37.] 


MISSOURI.  595 

§  435. — Such  judgment  shall  bind  only  the  property  and  effects  attached,  and 
no  execution  shall  issue  against  any  other  property  of  the  defendant;  nor  shall 
such  judgment  be  any  evidence  of  debt  against  the  defendant  in  any  subsequent 
suit.     [G.  S.  ma,  §  38.] 

§  436. — Where  there  are  two  or  more  defendants  in  attachment,  and  the  prop- 
erty, effects  or  credits  of  part  of  them  are  attached  by  garnishment,  and  the  others 
are  not  summoned,  the  plaintiff  may,  at  his  option,  proceed  against  those  whose 
property,  effects  or  credits  have  been  attached,  or  continue  the  cause,  and  sue  out 
new  process  against  the  other  defendants;  but  when  the  property  of  one  or  more  of 
the  defendants  has  been  actually  seized  or  secured  by  bond,  the  cause  shall  not  be 
delayed  for  the  piupose  of  suing  out  new  process  against  the  other  defendants, 
unless,  for  cause,  the  court  so  order.     [G.  S.  5G7,  §  39.] 

§  437. — When  the  defendant  is  summoned  to  appear,  or  shall  appear  voluntarily, 
the  like  proceedings  shall  be  had  between  him  and  the  plaintiff  as  in  ordinary 
actions  commenced  by  summons,  and  a  general  judgment  may  be  rendered  for  or 
against  the  defendant.     [G.  S.  567,  §  40.] 

§438.— In  all  cases  where  property,  effects  or  credits  shall  be  attached,  the 
defendant  may  file  a  plea,  in  the  nature  of  a  plea  in  abatement,  verified  by  affida- 
vit, putting  in  issue  the  truth  of  the  facts  alleged  in  the  affidavit  on  which  the 
attachment  was  sued  out.     [G.  S.  567,  §  41.] 

§  439. — Upon  such  issue  the  plaintiff  shall  be  held  to  prove  the  existence  of  the 
facts  alleged  by  him  as  the  ground  of  the  attachment,  and  if  the  issue  be  found  for 
him,  and  the  court  denies  defendant  a  new  trial  of  said  issue,  judgment  shall  be 
rendered  against  defendant  sustaining  said  attachment,  and  for  the  costs  of  the 
attachment  proceedings,  and  the  defendant  may  file  his  bill  of  exceptions  as  upon 
any  other  matter  in  the  proceedings,  and  answering  to  the  merits  shaU  not  be  a 
waiver  of  such  exceptions,  and  the  cause  shall  proceed;  but  if  such  issue  be  found 
for  the  defendant,  the  court  shall  thereupon  render  judgment  that  the  attachment 
be  abated  at  the  costs  of  the  plaintiff  and  his  sureties.  The  plaintiff,  against  whom 
such  issue  is  found  and  judgment  rendered,  may  appeal  from  such  judgment,  and 
such  appeal  shall  operate  as  a  supersedeas  of  such  judgment,  and  shall  preserve 
the  attachment  in  full  force  until  the  dismissal  or  determination  of  such  appeal. 
If  the  plaintiff,  in  case  the  judgment  be  against  him,  fails  to  appeal  from  such 
judgment,  or  if  such  judgment  against  him  be  affirmed,  the  plaintiff  and  his  sure- 
ties shall  be  liable  on  their  bond  for  all  damages  and  costs  occasioned  by  the  attach- 
ment, or  any  subsequent  proceedings  connected  therewith,  and  after  such  failure 
of  the  plaintiff  to  appeal,  or  after  such  dismissal  or  affirmance,  the  defendant  may 
plead  to  the  merits  and  the  suit  shall  proceed  to  final  judgment  on  the  cause  of 
action  therein  alleged,  as  though  commenced  originally  by  summons  alone.  Bond 
on  such  appeal  shall  be  requu-ed  in  such  sum  as  may  be  fixed  by  the  court.  The 
defendant  shall  not  be  required  to  plead  to  the  merits  of  the  action  until  after  the 
time  fixed  by  law  for  appeals  shall  have  expired,  if  the  plaintiff  calls  for  an  appeal; 
or,  if  an  appeal  is  taken,  until  after  its  determination;  and  if  the  jjarty,  against 
whom  judgment  shall  be  rendered,  fails  to  appeal  during  the  time  fixed  by  law 
for  appeals  in  other  cases,  he  shall  be  deemed  to  have  waived  all  right  to  have  such 
judgment  reviewed.    [G.  S.  507,  §  42,  amended.] 

§  440. — If  a  defendant,  in  any  attachment  cause,  die  after  the  levy  of  a  writ, 
or  the  summoning  of  a  garnishee  under  it,  the  action  and  attachment  and  issues, 
with  the  garnishees  or  interpleader,  made  or  to  be  made,  shall  not,  by  reason  of 
such  death,  be  dismissed,  or  the  lien  of  the  attachment  destroyed;  but  all  such 
actions  and  proceedings  shall  be  proceeded  on  to  final  judgment  and  determination, 
in  all  respects  and  in  like  manner  as  if  the  defendant  were  living.  The  executor 
or  administrator  of  the  decedent,  if  any,  shall  be  made  a  party  to  the  cause,  in 
the  manner  provided  by  law  in  ordinary  actions.  If  there  be  no  executor  or  ad- 
ministrator, the  court  in  which  the  cause  is  pending  shall  appoint  an  attorney  to 
defend  against  the  cause  and  attaclament,  until  the  executor  or  administrator  shall 
be  made  a  party;  and  such  attorney  shall  be  paid  for  his  services  a  reasonable  com- 
pensation, to  be  allowed  by  the  court  and  taxed  as  costs  in  the  cause.  [G.  S 
5G7,  §  43.] 

§  441. — The  person  appointed  attorney,  as  directed,  shall,  so  long  as  his  ap- 
pointment continues  in  force,  be  deemed,  to  all  intents  and  i)urposes,_the  repre- 
sentative of  the  decedent,  and  shall  Lave  the  same  power  to  file  pleadings,  order 
process,  or  take  any  other  steps  in  the  defense,  as  the  decedent  would  have  were 
he  living.     [G.  S.  567,  §  44.] 

§  442. — If  judgment  shall  be  rendered  on  the  attachment  in  favor  of  the  plaint- 
iff, as  provided  in  the  four  hundred  and  fortieth  section,  no  execution  shall  issue 


596  MISSOURI. 

thereon,  requiring  the  sale  of  any  property  or  effects  attached,  as  belonging  to  the 
defendant;  but  all  such  property  and  effects  shall  be  sold,  and  the  proceeds  thereof 
appropriated  in  the  manner  provided  by  law  respecting  administrators  and  execu- 
tors.    [G-.  S.  567,  §  45.] 

§  443. — After  the  death  of  any  defendant,  no  court  or  judge  shall  order,  as  above 
directed,  the  sale  of  any  property  or  effects  attached  as  belonging  to  such  decedent, 
but  the  same  shall  be  sold,  and  the  proceeds  thereof  appropriated  in  the  manner 
provided  by  law  respecting  administrators  and  executors.     [G.  S.  567,  §  46.] 

§  444. — Every  defendant  not  served  with  a  summons  may,  at  any  time  before 
final  judgment  against  him,  ajapear  and  plead  to  the  merits  of  the  action,  on  such 
terms  as  the  court  may  direct.     [G.  S.  568,  §  47.] 

§  445. — Attachments  in  courts  of  record  or  before  justices  of  the  peace  may  be 
dissolved,  on  motion  made  in  behalf  of  the  defendant,  at  any  time  before  final 
judgment,  in  the  following  cases:  First,  when  the  affidavit  on  which  the  same 
was  founded  -shall  be  adjudged  by  the  court  insufficient;  but  no  attachment  shall 
be  dissolved  in  such  case,  if  the  plaintiff  shall  file  a  good  and  sufficient  afiida\'it,  to 
be  approved  by  the  court,  in  such  time  and  manner  as  the  court  shall  direct;  such 
affidavit  may  embrace  the  same  ground  of  attachment  sot  forth  in  the  previous 
affidavit,  or  any  other  grounds,  or  both,  at  the  option  of  the  affiant:  Second,  when 
the  defendant  shall  appear  and  plead  to  the  action,  and  give  bend  to  the  plaintiff, 
with  good  and  sufficient  security,  to  be  approved  by  the  court,  in  double  the 
amount  of  the  property,  effects  and  credits  attached,  conditioned  that  such  prop- 
erty, effects  and  credits  shall  be  forthcoming,  and  abide  the  judgment  vrhich  ^haU 
be  rendered  in  the  cause,  when  and  where  the  court  shall  direct;  third,  when  the 
defendant  shall  appear  and  jjlead  to  the  action,  and  gi've  like  bond  and  security, 
in  a  sum  sufficient  to  satisfy  the  amount  sworn  to,  in  behalf  of  the  plaintiff,  with 
interest  and  costs  of  suit,  conditioned  that  the  defendant  shall  pay  to  idaintiff  the 
amount  which  may  be  adjudged  in  favor  of  the  plaintiff,  interest,  and  all  costs  of 
suit,  on  or  before  the  first  day  of  the  next  term  after  that  at  which  judgment  shall 
be  rendered.     [G.  S.  568,  §  48.] 

§  446. — When  any  attachment  shall  be  dissolved,  all  proceedings  touching  the 
property  and  effects  attached,  and  the  garnishee  summoned,  shall  be  vacated,  and 
the  suit  shall  proceed  as  if  it  had  been  commenced  by  summons  only.  [G.  S. 
568,  §  49.] 

§  447. — Where  the  same  property  is  attached  in  several  actions,  by  different 
plaintiffs,  against  the  same  defendant,  the  court  may  settle  and  determine  all  con- 
troversies which  may  arise  between  any  of  the  plaintiffs  in  relation  to  the  property, 
and  the  priority,  validity,  good  faith,  force  and  effect  of  the  different  attachments, 
and  may  dissolve  any  attachment,  partially  or  wholly,  or  postpone  it  to  another, 
or  make  such  order  in  the  i^remises  as  right  and  justice  may  require.  If  the  ivrits 
issued  from  different  courts  of  co-ordinate  jurisdiction,  such  controversies  shall  be 
determined  by  that  court  out  of  which  the  first  writ  of  attachment  was  issued;  in 
order  whereto,  the  cases  originating  in  the  other  court  shall  be  transferred  to  it, 
and  shall  thenceforth  be  there  heard,  tried  and  determined  in  all  their  parts,  as  if 
they  had  been  instituted  therein.  If  any  such  controversy  arise  between  a  plaintiff 
in  an  action  instituted  in  a  court  of  general  jurisdiction,  and  a  plaintiff  in  an  action 
instituted  in  a  court  of  limited  jurisdiction,  the  matter  shall  be  determiaed  by  the 
former  court,  to  which  the  action  commenced  in  the  latter  shall  be  transferred. 
And  when  the  defendant  has  been  notified  by  publication,  and  does  not  appear, 
any  plaintiff,  in  the  circumstances  contemplated  in  this  section,  may  make  any 
defense  to  any  previous  attachment,  or  to  the  action,  which  the  defendant  might; 
but  no  judgment  on  any  issue  made  in  such  manner  shall  be  binding  on  the  defend- 
ant personally,  or  bar  the  jilaintiff  in  an  action  so  contested  by  an  opposing  plaintiff 
from  again  suLag  the  defendant  on  the  same  cause  of  action.     [G.  S.  568,  §  50.] 

§  448. — Any  attaching  creditor  may  maintain  an  action  for  the  purpose  of  set- 
ting aside  any  fraudulent  conveyance,  assigimient,  charge,  lien  or  incumbrance  of 
or  upon  any  ijroperty  attached  in  any  action  instituted  by  him;  and  where  several 
attachments  in  favor  of  different  plaintiffs  are  levied  on  the  same  property,  aU  or 
any  number  of  such  plaintiffs  may  join  in  the  same  action  for  that  purpose.  [G.  S. 
568,  §  51.] 

§  449. — Any  person  claiming  property,  money,  effects  or  credits  attached,  may 
interplead  in  the  cause,  verifying  the  same  by  affidavit,  and  issues  may  be  made 
upon  such  interplea,  and  shall  be  tried  as  like  issues  between  plaintiff  and  defend- 
ant, and  without  any  unnecessary  delaj'.     [G.  S.  569,  §  52.] 

§  450. — In  all  cases  of  interpleader,  costs  may  be  adjudged  for  ox  against  either 
party,  as  in  ordinary  actions.     [G.  S.  569,  §  53.] 


MISSOURI.  597 

§  451. — Wlienever  it  shall  appear  from  the  return  of  the  officer  upon  an  execu- 
tion issued  in  an  attachment  suit,  that  none  of  the  property  attached  has  been 
found,  or  only  a  part  thereof,  and  that  said  execution  is  not  fully  satisfied,  the 
court  or  justice  shall  direct  the  officer  to  assign  to  the  plaintiff,  his  executor  or 
administrator,  the  bonds  taken  by  him  for  the  forthcoming  of  the  property  attached; 
and  such  court  or  justice  may,  upon  motion,  render  judgment  in  favor  of  the 
plaintiff,  his  executor  or  administrator,  against  the  obligors  in  the  bond,  for  the 
value  of  such  i^roperty,  or  if  the  value  of  such  property  should  be  greater  than 
the  amount  due  uiDon  execution,  then  for  the  amount  due,  together  with  twenty 
per  cent,  damages  upon  such  value  or  amount.     [G.  S.  569,  §  54.] 

§  452.— No  judgment  shall  be  rendered  upon  such  motion,  unless  the  plaintiff 
shall  have  given  the  obligors  in  the  bond  at  least  fifteen  days'  notice,  in  writing, 
of  such  motion.     [Cx.  S.  569,  §  55.] 

§  453. — In  all  suits  by  attachment,  wherein  there  is  no  personal  service  on  the 
defendant,  and  the  defendant  shall  not  appear  to  the  action,  the  court  in  which 
such  suits  are  pending  may,  for  the  furtherance  of  justice,  in  its  discretion,  permit 
any  person  or  persons,  who  are  attaching  creditors  of  the  same  defendant,  to  appear 
in  said  suits  on  behalf  of  the  defendant,  and  make  all  such  defenses  as  the  defend- 
ant could  make.     [G.  S.  569,  §  66.] 

§  454. — Any  judgment  rendered  against  any  defendant  after  such  defense, 
without  personal  service  on  the  defendant,  or  his  appearance  to  the  action,  shall 
bind  only  the  projierty  and  effects  attached,  and  execution  shall  issue  only  in  the 
manner  provided  by  law  upon  other  judgments' entered  by  default  on  proof  of 
publication  of  notice.     [G.  S.  509,  §  57.] 

§  455. — Executions  may  be  awarded  and  issued  on  judgments  rendered  as  pro- 
vided by  this  chapter,  according  to  the  circumstances  of  each  case,  as  follows: 
Fiibt,  where  there  is  a  general  judgment  against  the  defendant,  the  execution  shall 
be  a  common  fcri  facias,  which  may  be  levied  upon  all  the  property  of  the  defend- 
ant subject  to  execution,  whether  attached  in  the  cause  or  not:  Secmid,  Avhere 
there  is  a  special  judgment  against  the  property,  money  or  effects  attached,  the 
execution  shall  be  a  special  fcri  facias  against  such  property,  money  or  effects 
only,  and  may  be  levied  upon  the  same  whether  in  the  hands  of  the  officer  or  se- 
cured by  bond,  as  provided  in  this  chapter,  and  shall  not  be  for  more  than  the 
amount  sworn  to  in  the  affidavit  for  the  attachment,  with  the  interest  and  costs 
thereon.     [G.  S.  569,  §  58.] 

§  456. — Courts  having  jurisdiction  of  attachment  may,  by  rule,  prescribe  the 
time  and  manner  of  interjileading  or  exhibiting  or  filing  any  papers,  or  taking  any 
needful  steps  therein,  where  the  same  are  not  prescribed  by  law.     [G.  S.  569,  §  59.] 

§  457.— In  cases  where  judgment  is  rendered  against  the  defendant,  upon  pub- 
lication of  notice,  without  service  of  a  summons  or  his  appearance  to  the  action, 
he  shall  lie  allowed  two  years  and  no  longer,  from  the  date  of  the  judgment,  to  ap- 
pear and  disprove  or  avoid  the  debt  or  damages  adjudged  against  him,  or  any  part 
thereof.     [G.  S.  569,  §  CO.] 

§  458. — In  order  to  disprove  and  avoid  the  debt  and  damages,  or  damages,  as 
mentioned  in  the  preceding  section,  the  defendant  m.ay  petition  the  court  or  jus- 
tice rendering  the  judgment,  or  the  successors  of  such  justice  or  the  court  to  which 
the  records  and  papers  may  have  been  removed,  settingforth  the  grounds  on  which 
he  resists  the  demand  of  the  plaintiff,  and  furnish  the  plaintiff  with  a  coi^y  of  the 
petition  fifteen  days  before  the  same  shall  be  jiresented,  with  a  written  notice, 
indorsed  on  the  copv,  of  the  day  and  place  when  and  where  the  petition  will  be 
presented.     [G.  S.  570,  §  61.] 

§  459. — If  the  petition  deny  the  cause  of  action  on  which  the  judgment  was 
rendered,  and  be  verified  by  the  oath  of  the  jietitioner,  the  plaintiff  shall  be 
reqiiired  to  prove  the  same,  and,  in  defaiilt  thereof,  it  shall  be  adjudged  that  the 
debt  and  damages,  or  damages,  are  disproved  and  avoided.     [G.  S.  670,  §  62.] 

§  460.^If  the  petition,  denying  the  cause  of  action,  be  not  verifiedby  oath, 
or  if  the  petition  allege  a  set-off,  or  other  collateral  avoidance  of  the  original  cause 
of  action,  the  j'ttitioner  shall  be  required  to  prove  his  allegations,  and  on  his  fail- 
ure to  do  so,  his  ];etition  shall  be  dismissed,  and  the  original  judgment  shall  stand 
absolute;  and,  if  any  part  thereof  remain  impaid,  a  general  judgment  shall  be 
rendered  against  him  for  the  balance  remaining  unpaid.     [G.  S.  670,  §  63.  J 

_  §  461. — "When  any  such  petition  shall  be  exhibited,  the  plaintiff  (being  served 
with  a  copy  and  notice  as  aforesaid)  shall  appear  and  answer  the  same;  and,  on  his 


598  MISSOURI. 

faihire  to  do  so,  the  petition  shall  be  taken  to  be  true,  and  judgment  rendered 
accordingly.     [G.  S.  570,  §  04.] 

§  4G2. — When  the  petition  alleges  a  set-off  or  other  collateral  avoidance  of  the 
cause  of  action,  the  plaintiff  may  answer  the  same,  as  in  ordinary  actions;  and,  in 
default  of  such  answer,  judgment  may  be  taken  in  like  manner  and  with  like 
effect  as  in  ordinary  actions.     [G.  S.  570,  §  05.] 

§  403. — All  issues  joined  by  or  under  such  petitions,  shall  be  tried  as  like  issues 
joined  in  ordinary  actions,  and  the  costs  shall  be  the  same,  and  the  same  judgment 
shall  be  rendered  for  them;  and,  if  the  judgment  be  against  the  original  plaintiff, 
he  shall  be  adjudged  to  pay  aU  costs  in  the  original  proceedings.     [G.  S.  570,  §  55.] 

GARNISHMENT. 

§  754. — Proceedings  against  garnishees,  under  the  provisions  of  this  chapter, 
shall  be  the  same  as  against  the  garnishee  summoned  in  the  case  of  an  original 
attachment;  but  no  judgment  shall  be  rendered  against  him  for  any  debt  to  become 
due  at  a  future  day,  until  after  the  same  shall  become  due.     [G.  S.  331,  §  30.] 

§  755. — For  all  moneys  paid  by  any  garnishee  imder  this  chapter  he  shall  hava 
credit  against  the  corporation  to  whom  it  was  due.     [G.  S.  3.31,  §  31.] 

§  2517. — All  persons  shaU  be  subject  to  garnishment,  on  attachment  or  execu- 
tion, who  are  named  as  garnishees  in  the  writ,  or  have  in  their  possession  goods, 
moneys  or  effects  of  the  defendant  not  actually  seized  by  the  officer,  and  all 
debtors  of  the  defendant,  and  such  others  as  the  plaintiff  or  his  attorney  shaU 
direct  to  be  summoned  as  garnishees.     [G.  S.  573,  §  1.] 

§  2518. — When  ^  fieri  facias  shall  be  issued  and  placed  in  the  hands  of  an  officer 
for  collection,  it  shall  be  the  duty  of  the  officer,  when  directed  by  the  plaintiff,  hia 
agent  or  attorney,  to  summon  garnishees,  and  with  like  effect  as  in  case  of  an 
original  attachment.  The  service  of  garnishment  in  such  case,  and  the  subsequent 
proceedings  against  and  in  behalf  of  the  garnishee,  shall  be  the  same  as  in  the  case 
of  garnishment  under  an  attachment.     [G.  S.  573,  §  2,  amended.] 

§  2519. — No  sheriff,  constable  or  other  officer  charged  with  the  collection  of 
money,  shall,  prior  to  the  return  day  of  an  execution  or  other  process  upon  which 
the  same  may  be  made,  be  liable  to  be  summoned  as  garnishee;  nor  shall  any 
county  collector,  county  treasurer,  or  municipal  corporation,  or  any  officer  thereof, 
or  any  administrator  or  executor  of  an  estate,  prior  to  an  order  of  distribution,  or 
for  payment  of  legacies,  or  the  allowance  of  a  demand  found  to  be  due  by  hia 
estate,  be  liable  to  be  summoned  as  garnishee;  nor  shall  any  person  be  charged  aa 
garnishee  on  account  of  wages  due  from  him  to  a  defendant  in  his  employ,  for  the 
last  thirty  days'  service;  nor  shall  any  person  be  so  charged,  by  reason  of  his  hav- 
ing drawn,  accepted,  made  or  indorsed  any  promissory  note,  bOl  of  exchange, 
draft  or  other  security,  in  its  nature  negotiable,  unless  it  be  shown  at  the  hearing 
that  such  note,  biU,  draft,  or  other  security  was  the  property  of  the  defendant 
when  the  garnishee  was  summoned,  and  continued  so  to  be  irntU  after  it  became 
due.     [G.  S.  573,  §  3,  amended.] 

§  2520. — Notice  of  garnishment,  served  as  provided  by  this  chapter,  shall  have 
the  effect  of  attaching  all  personal  proi:)erty,  money,  rights,  credits,  bonds,  bills, 
notes,  di-afts,  checks  or  other  choses  in  action  of  the  defendant  in  the  garnishee's 
possession  or  charge,  or  under  his  control  at  the  time  of  the  service  of  the  garnish- 
ment, or  which  may  come  into  his  possession  or  charge,  or  under  his  control,  or  be 
owing  by  him,  between  that  time  and  the  time  of  filing  his  answer;  but  he  shall 
not  be  liable  to  a  judgment  in  money  on  account  of  such  bonds,  bills,  notes,  drafts, 
checks  or  other  choses  in  action,  unless  the  same  shall  have  been  converted  into 
money  since  the  garnishment,  or  he  fail,  in  such  time  as  the  court  may  prescribe, 
to  deliver  them  into  court,  or  to  the  sheriff  or  other  person  designated  by  the 
court.     [G.  S.  573,  §  4.] 

§  2521.  Notice  of  garnishment  shall  be  served  on  a  corporation  in  writing,  by 
delivering  such  notice,  or  a  copy  thereof,  to  the  president,  secretary,  treasurer, 
cashier,  or  other  chief  or  managing  officer  of  such  corijoration :  Provided,  such 
notice  may  be  served  on  railroad  corporations  by  delivering  the  same,  or  a  copy 
thereof,  to  the  nearest  station  or  freight  agent  of  such  corporation,  in  the  county 
in  which  the  cause  of  acti(5n  is  pending.     [Laws  1873,  p.  8.]^ 

§  2522. — The  officer  serving  a  writ  of  attachment  shall  return  all  bonds  taken 
by  him  into  court,  with  the  writ,  and  a  statement  of  the  names  of  all  garnishees, 
together  with  the  day  and  hour  and  the  jjlaces  when  and  where  they  were  respect- 
ively summoned.    [G.  S.  574,  §6.) 


J 


MISSOURI.  599 

§  2523. — Whenever  any  property,  effects,  money  or  debts,  Ijelonging  or  owing' 
to  tLe  defendant,  shall  be  confessed  or  found,  by  the  court  or  jury,  to  be  in  the 
hands  of  the  garnishee,  he  may,  at  any  time  before  final  judgment,  discharge  him- 
self, by  paying  or  delivering  the  same,  or  so  much  thereof  as  the  court  shall  order, 
to  the  sheriff,  from  all  further  liability  on  account  of  the  j)roperty,  money  or  debts 
so  paid  or  delivered.     [Gr.  S.  574,  §  7.] 

§  2524. — If  it  appear  that  a  garnishee,  at  or  after  his  garnishment,  was  jiossessed 
of  any  property  of  the  defendant,  or  was  indebted  to  him,  the  court,  or  judge  in 
vacation,  may  order  the  delivery  of  .such  property,  or  the  payment  of  the  amount 
owing  by  the  garnishee,  to  the  sheriff  or  into  court,  at  such  time  as  the  court  may 
direct;  or  may  permit  the  garnishee  to  retain  the  same,  upon  his  executing  a  bond 
to  the  plaintiff,  with  security,  approved  by  the  court,  to  the  effect  that  the  prop- 
erty shall  be  forthcoming  or  the  amount  paid,  as  the  court  may  direct.  Upon  a 
breach  of  the  obligation  of  such  bond,  the  plaintiff  may  proceed  against  the  oblig- 
ors therein,  in  the  manner  prescribed  in  the  case  of  a  deUvery  bond  given  to  the 
sheriff.     [G.  S.  574,  §  8,  amended.] 

§  2525. — Any  person  claiming  property,  money,  effects  or  credits  attached  in 
the  hands  of  a  garnishee,  may  interplead  in  the  cause,  as  provided  Ijy  law  in  attach- 
ment cases;  but  no  judgment  shall  be  rendered  against  the  garnishee  in  whose 
hands  the  same  may  be,  until  the  inter^jlea  shall  be  determined.     [G.  S.  574,  §  9.] 

§2526. — In  all  cases  of  interplea,  costs  maybe  adjudged  for  or  against  either 
party,  as  in  ordinary  actions.     [G.  S.  574,  §  10.] 

§  2527. — When  jud.gment  is  rendered  against  any  garnishee,  the  execution  shall 
be  such  as  is  allowed  by  law  on  general  judgment.     [G.  S.  574,  §  11.] 

§  2528. — The  court  having  jurisdiction  may  prescribe,  by  rule,  the  time  and 
manner  of  excepting  to  and  denying  the  answer  of  garnishees,  or  interpleading, 
exhibiting  or  filing  papers,  or  taking  any  needful  steps  in  garnishment  cases,  where 
the  same  are  not  prescribed  by  law.     [G.  S.  574,  §  12.] 

§  2529. — The  plaintiff  may  exhibit  in  the  cause,  written  interrogatories  touch- 
ing the  property,  effects  and  credits  attached  in  the  hands  of  any  garnishee,  and 
require  such  garnishee  to  make  full,  direct  and  true  answers  to  the  same,  upon 
oath;  which  interrogatories  shall  be  filed  at  the  return  term  of  the  writ,  and  within 
the  first  three  days  thereof,  if  the  term  shall  so  long  continue,  and  if  not,  then 
before  the  end  of  the  term,  and  not  afterward,  unless,  for  good  cause  shown,  the 
court  shall  order  otherwise.     [G.  S.  574,  §  13.] 

§  2530. — Upon  the  filing  the  interrogatories  aforesaid,  the  garnishee  shall  ex- 
hibit and  file  his  answer  thereto,  on  oath,  within  six  days  thereafter,  if  the  term 
shall  so  long  continue,  if  not,  during  such  term,  unless,  for  good  cause  shown,  the 
court  shall  order  otherwise;  in  default  of  such  answer,  the  plaintiff  may  take  judg- 
ment by  default  against  him,  or  the  court  may,  upon  motion,  comi^el  him  to 
answer  by  attachment  of  his  body.     [G.  S.  574,  §  14.] 

§  2531. —  Such  judgment  by  default  may  be  proceeded  on  to  final  judgment,  in 
like  manner  as  in  case  of  defendants  in  other  civil  actions;  but  no  final  judgment 
shall  be  rendered  against  the  garnishee  until  there  shall  be  final  judgment  against 
the  defendant,  and  in  no  case  for  a  greater  amount  than  the  amount  sworn  to  by 
the  plaintiff,  with  interest  and  costs,  or  for  a  greater  amount  than  the  garnishee 
shall  appear  to  be  liable  for  to  the  defendant.     [G.  S.  575,  §  15.] 

§  2532.^ — The  plaintiff  may  except  to  the  answer  of  the  garnishee  for  insuffi- 
ciency, and  if  the  same  shall  be  adjudged  insufficient,  .the  court  may  allow  the 
garnishee  to  amend  his  answer  in  such  time  and  on  such  terms  as  shall  be  just,  or 
the  plaintiff  may  take  judgment  by  default,  or  move  the  com-t  to  attach  the  body 
of  the  garnishee,  to  compel  a  sufficient  answer.     [G.  S.  575,  §  IG.] 

§  2533.  —The  plaintiff  may  deny  the  answer  of  the  garnishee  in  whole  or  in  part, 
without  oath.  In  all  cases  where  the  answer  of  the  garnishee  is  denied,  the  denial 
shall  contain,  specially,  the  groimds  ujion  which  a  recovery  is  sought  against  the 
garnishee;  and  the  garnishee  shall  be  entitled  to  a  reply,  and  the  issue  or  issues 
made  up  on  the  denial  and  reply  shall  be  the  sole  issue  or  issues  tried,  and  the 
issue  or  issues  shall  be  tried  as  ordinary  issues  between  plaintiff  and  defendant. 
[G.  S.  575,  §  17.] 

§  2534. — If,  upon  such  trial,  it  shall  ajipear  that  property,  effects  or  money  of  the 
defendant  are  found  in  the  hands  of  the  garnishee,  the  court  or  jury  shall  find 
what  property  or  effects,  and  the  value  thereof,  or  v.liat  money,  are  in  his  hands, 
and  unless  he  discharge  himself  as  provided  in  section  two  thousand  five  hundred 
and  twenty-three,  by  paying  or  delivering  over  the  same  to  the  sheriff,  or  unless 


600  MISSOURI. 

he  shall,  within  such  time  as  the  court  shall  direct,  as  provided  in  section  two 
thousand  live  hundred  and  twenty-four,  paj^  or  deliver  up  buch  property,  effects  or 
money,  or  shall  execute  his  bond  for  the  pavTuent  or  delivery  thereof,  then  the 
court  shall  enter  uj)  judgment  against  the  garnishee  for  the  proper  amount  or  value 
as  found  in  money,  and  execution  may  issue  forthwith  to  enforce  such  judgment. 
[G-.  S.  575,  §  IS,  amended.] 

§  2535. — If  the  answer  of  the  garnishee  be  not  excepted  to  or  denied  in  proper 
time,  it  shall  be  taken  to  be  true  and  sufficient.     [G.  S.  575,  §  19.] 

§  2536. — If,  by  the  answer,  not  excepted  to  nor  denied,  it  shall  appear  that  the 
garnishee  is  possessed  of  ]3roperty  or  effects  of  the  defendant,  or  is  indebted  to  the 
defendant,  the  same  proceedings  may  be  had  to  ascertain  the  value  of  such  jjrop- 
erty  or  effects,  or  amount  of  such  indebtedness,  and  to  render  and  enforce  a  judg- 
ment therefor,  as  is  provided  in  section  two  thousand  five  hundred  and  thirty-four. 
[G.  S.  575,  §  20.] 

§  2537. — In  such  case,  the  court  shall  make  the  garnishee  a  reasonable  allowance 
for  his  trouble  and  expenses  in  answering,  to  be  paid  out  of  the  fund  or  proceeds  of 
the  projjerty  or  effects  confessed  in  his  hands.     [G.  S.  575,  §  21.] 

§  2538. — If  any  plaintiff  in  attachment  shall  cause  any  person  to  be  svimmoned 
as  garnishee,  and  shall  fail  to  recover  judgment  against  such  garnishee,  all  the 
costs  attending  such  garnishment  shall  be  adjudged  against  such  plaintiff,  and  the 
coiu't  shall  render  judgment  in  favor  of  such  garnishee,  against  the  jslaintiff,  for  a 
sum  sufficient  to  indemnify  him  for  his  time  and  expenses,  and  reasonable  attor- 
ney's fees,  in  attending  and  answering,  and  defending  in  subsequent  proceedings  as 
garnishee.     [G.  S.  575,  §  22.] 

§  2539. — In  all  cases  between  the  plaintiff  and  garnishee,  the  parties  may  be 
adjudged  to  pay  or  recover  costs,  as  in  ordinary  cases  between  plaintiff  and  defend- 
ant.    [G.  S.  575,  §  23.] 

§  2540. — Debts  not  yet  due  to  the  defendant  may  be  attached,  but  no  execution 
shall  be  awarded  against  the  garnishee  for  debts  vmtU.  they  shall  become  due. 
[G.  S.  575,  §  24.] 

§  2541. — If  the  garnishee  disclose  in  his  answer,  and  declare  his  belief,  that  the 
debt  owing  by  him  to  the  defendant,  or  the  supposed  property  of  the  defendant  in 
his  hands,  has  been  sold  or  assigned  to  a  third  person,  and  the  plaintiff  contests  or 
disputes  the  existence,  force  or  validity  of  such  sale  or  assignment,  the  court  shall 
make  an  order  upon  the  supposed  vendee  or  assignee,  to  appear  at  a  designated 
time,  and  sustain  his  claim  to  the  property  or  debt.  A  copy  of  such  order  shall 
be  served  upon  him,  as  in  the  case  of  a  summons,  if  he  can  be  found;  if  not,  it  shall 
be  published  once  a  week,  for  three  consecutive  weeks,  in  some  newspaper  pub- 
lished in  or  nearest  the  county  in  which  the  action  is  pending,  which  shall  be 
equivalent  to  service.  If  the  party  so  notified  fail  to  apjieat  as  required,  the  gar- 
nishee's averment  of  such  sale  or  assignment  shall  be  disregarded;  but  if  he  appear, 
and,  in  ^vriting,  filed  in  the  cause  and  verified  by  affidavit,  claim  under  such  sale 
or  assignment,  a  trial  cf  his  right  shall  be  had,  without  unnecessary  delay,  upon 
an  issue  made  thereon;  and  if  the  same  be  determined  in  his  favor,  the  garnishee 
shall,  as  to  the  property  or  debt  in  question,  be  discharged.     [G.  S.  575,  §  25.] 

§  2542.  If  it  shall  be  made  to  appear  that  any  garnishee  had,  before  his  gar- 
nishment, executed  to  any  defendant  a  negotiable  promissory  note,  which,  at  the 
time  of  the  garnishment,  was  unpaid,  the  court  or  the  judge  thereof  may  order 
the  defendant  to  deli\er  the  same  into  court;  and  if  the  defendant,  in  showing 
cause  for  the  non-delivery  thereof,  allege  an  indorsement  or  delivery  thereof  to 
some  other  person  before  the  order  of  the  coiu't  came  to  his  knowledge,  the  fact  of 
such  transfer  and  the  consideration  and  good  faith  thereof  maj'  be  inquired  into 
and  determined  by  the  com-t;  and  in  order  thereto,  the  alleged  indorsee  or  trans- 
feree and  the  defendant  may  be  examined,  on  oath,  in  open  court,  and  if  it  appear 
that  such  indorsee  or  transferee  holds  the  same  by  a  fraudulent  indorsement  or 
deliver}',  the  court  may  order  him  to  deliver  such  note  into  court.  Any  order  of 
deliverj'  made  in  pursuance  hereof  may  be  enforced  by  attachment  of  the  body  of 
the  party  to  whom  it  is  directed.  When  any  note  shall  be  delivered  into  court, 
in  pursuance  of  this  section,  the  court  shall  take  projjer  measm-es  to  cause  any 
indorsers  thereon  to  be  notified,  at  its  maturity,  of  its  non-pajTnent.  [G.  S. 
576,  §  26.] 

§  2543.— The  following  interrogatories,  and  none  other,  shall  be  propoimded  to 
a  garnishee  summoned  in  a  suit  before  a  justice  of  the  peace,  which  he  shall  answer 
on  oath:  First,  at  the  time  of  service  of  the  garnishment,  had  you  in  yoiu-  posses- 
sion, or  under  yom*  control,  any  property,  money  or  effects  of  the  defendant?  if 


1 


MISSOURI.  GOl 

BO,  state  what  property,  how  much  and  of  what  value,  and  what  money  or  effects: 
Hecoiid,  at  the  time  of  service  of  the  garnishment,  did  you  owe  the  defendant  any 
money,  or  do  you  owe  him  any  now?  if  so,  how  much,  ou  what  account,  and  when 
did  it  become  due?  if  not  yet  due,  when  will  it  become  due?    [G.  S.  570,  g  27. J 

§  2544. — Any  garnishee,  being  summoned,  may,  at  his  option,  appear  and 
answer  the  interrogatories  before  the  return  day  of  the  attachment.  [G.  S.  57G,  §  28.] 

§  2545. — The  garnishee  may  file  his  answer,  in  writing,  under  oath,  with  the 
justice;  or  the  justice  may,  at  his  request,  write  the  answer  of  the  garnishee  to 
eacli  interrogatory  separately,  and  file  the  answer  as  a  paper  in  the  cause.  [G.  S. 
576,  §  29.] 

§  2546. — If  any  garnishee,  being  duly  summoned,  fail  to  appear  at  the  proper 
time,  or,  appearing,  fail  to  make  full  and  direct  answers,  upon  oath,  to  the  inter- 
rogatories, the  plaintiff  may  take  judgment  against  him  by  default,  which  may  be 
proceeded  on  to  final  judgment,  in  like  manner  as  in  cases  between  plaintiff  and 
defendant;  or,  at  the  option  of  the  plaintiff,  the  justice  shall  attach  the  body  of 
the  garnishee,  until  he  make  full  and  distinct  answers  to  the  interrogatories. 
[G.  S.  576,  §30.] 

§  2547. — The  plaintiff  may  deny  the  answer  of  the  garnishee,  or  any  part 
thereof,  on  the  same  day  on  which  the  answer  is  made,  if  it  be  a  regular  law  day, 
and,  if  not,  in  such  time  as  the  justice  shall  direct.     [G.  S.  577,  §  31.] 

§  2548. — The  justice  shall  reduce  to  writing  such  denial,  showing  what  part  is 
denied,  and  what  not  denied,  and  file  it  as  a  paper  in  the  cause.     [G.  S.  577,  §  32.] 

§  2549.— All  issues  between  the  plaintiff  and  a  garnishee  shall  be  tried  as  ordi- 
nary issues  between  plaintiff  and  defendant,  and  costs  may  be  adjudged  for  or 
againet  either  party,  as  in  ordinary  actions.     [G.  S.  577,  §  33.] 

§  2550. — If,  upon  the  trial  of  such  issue,  property,  effects  or  money  of  the  de- 
fendant are  found  in  the  hands  of  the  garnishee,  the  justice  or  jury  shall  find  what 
property  or  effects,  and  the  value  thereof,  or  what  money,  are  in  his  hands;  and 
unless  he  discharge  himself  as  provided  in  the  next  section,  by  paying  or  delivering 
over  such  property  or  money  to  the  constable  forthwith,  or  as  soon  as  may  be, 
then  the  justice  shall  enter  up  judgment  again.st  the  garnishee  for  the  value  or 
amount  in  money  as  found.  The  provisions  of  sections  two  thousand  five  hundred 
and  thirtj^-seven  and  two  thousand  five  hundred  and  thirty-eight,  shall  apply  ia 
cases  of  garnishment  before  justices  of  the  j)eace.     [G.  S.  577,  §  34,  amended.] 

§  2551. — Any  garnishee  having  in  his  possession  property,  money  or  effects  of 
the  defendant,  may  discharge  himself  by  surrendering  and  paying  the  same,  or  so 
much  thereof  as  shall  be  sufficient  to  satisfy  the  debt  and  interest,  or  damages  and. 
costs,  to  the  constable,  and  taking  his  receipt  therefor,  at  any  time  before  final 
judgment  against  him.     [G.  S.  577,  §  35.] 

§  2552. — If  the  answer  of  the  garnishee  be  not  denied  in  proper  time,  it  shall  be 
taken  to  be  true  and  sufficient.     [G.  S.  577,  §  36.] 

§  2553. — If,  by  the  answer  not  denied,  it  shall  appear  that  the  garnishee  is  pos- 
sessed of  projierty  or  effects  of  the  defendant,  or  is  indebted  to  the  defendant,  the 
justice  shall  assess  the  value  of  such  property  or  effects,  and  ascertain  the  amount 
of  such  indebtedness,  and  shall  render  judgment  for  the  proper  amount  in  money, 
unless  the  same  shall  be  paid  or  delivered  to  the  constable,  as  i^rovided  in  section 
two  thousand  five  hundred  and  fifty-one.     [G.  S.  577,  §  37.] 

§  2554. — No  final  judgment  shall  be  rendered  against  a  garnishee  until  there 
shall  be  final  judgment  against  the  defendant.     [G.  S.  577,  §  38.] 

§  2555. — Any  person  claiming  property,  money,  effects  or  credits  attached,  may 
file  his  interplea,  in  -m-iting,  in  the  cause,  supported  by  affidavit;  and  verbal  issues 
may  be  taken  to  such  interi^lea,  and  shall  be  tried  as  issues  between  plaintiff  and 
defendant  in  ordinary  cases,  and  without  unnecessary  delay.     [G.  S.  .577,  §  39.] 

§  2556. — The  justice  shall  file  such  interplea,  and  note  the  filing  thereof  and 
the  substance  of  the  issues  upon  his  docket.     [G.  S.  577,  §  40.] 

§  2557. — No  judgment  shall  be  rendered  against  the  garnishee  in  whose  hands 
or  possession  the  ]  iroperty,  money,  effects  (jr  credits  may  be,  until  the  issue  upon 
Buch  interijlea  shall  be  determined.     [G.  S.  577,  §  41.] 


602  MONTANA. 

§  2558.— In  all  cases  of  interpleader,  costs  maybe  adjudged  for  or  against  either 
party,  as  in  ordinary  actions.     [G.  S.  577,  §  42.] 


Before  justices  of  the  peace — Sees.  464-481. 

Exemptions— Sees.  2342-234G;  homestead,  sees.  2689-2692;  for  rent,  sec.  3096. 

Property  subject  to  attachment  and  execution — Sec.  2354. 

For  rent— Sees.  3091-3093,  and  Stats.  1883,  p.  105. 

Boats,  etc. — Sec.  4225,  et  seq. 


MONTANA. 

[Revised  Statutes,  1879,  and  Subsequent  Statutes.] 


CHAPTER  IV. 


ATTACHMENTS. 


§  179. — The  plaintiif  at  the  time  of  issuing  the  summons,  or  at  any  time  after- 
ward, may  have  the  property  of  the  defendant  not  exemjjt  from  execution  attached 
as  security  for  the  satisfaction  of  any  judgment  that  may  be  recovered  in  said  ac- 
tion, unless  the  defendant  give  good  and  sufficient  security  to  secure  the  payment 
of  said  judgment:  Provided,  that  no  writ  of  attachment  shall  be  issued  until  the 
plaintiff,  his  agent  or  attorney,  shall  file  with  the  clerk  an  afladavit  showing  that 
the  defendant  is  indebted  to  the  plaintiff  upon  a  contract,  express  or  implied,  for 
the  payment  of  money,  gold  dust,  or  other  property  then  due,  which  is  not  secured 
by  a  mortgage  lien,  or  iDledge  upon  real  or  personal  i)roperty,  or  is  so  secured  that 
the  security  has  become  iasufficient  by  the  act  of  the  defendant,  or  by  any  means 
has  become  nugatory. 

§  180.  ^Before  issuing  the  writ,  the  clerk  shall  require  a  written  undertaking  on 
the  part  of  the  plaintiff,  with  two  or  more  sufficient  sureties,  to  be  approved  by 
the  clerk,  in  a  sum  not  less  than  double  the  amount  claimed  by  the  plaintiff,  if 
such  amount  be  one  thousand  dollars  or  under,  or  in  case  the  amount  so  claimed  by 
plaintiff  shall  exceed  one  thousand  dollars,  then  in  a  sum  equal  to  such  amount, 
but  in  no  case  shall  an  undertaking  be  required  exceeding  in  amount  the  sum  of 
ten  thousand  dollars.  The  condition  of  such  undertaking  shall  be  to  the  effect  that 
if  the  defendant  recover  judgment,  or  if  the  court  shall  finally  decide  that  the 
plaintiff  was  not  entitled  to  an  attachment,  the  plaintiff  will  pay  all  costs  that 
may  be  awarded  to  the  defendant,  and  all  damages  he  may  sustain  by  reason  of 
the  issuing  out  of  the  attachments,  not  exceeding  the  sum  specified  in  the  under- 
taking. Within  five  days  after  service  of  the  summons  in  the  action  the  defend- 
ant may  except  to  the  sufficiency  of  the  sureties.  If  he  faU  to  do  so,  he  is  deemed 
to  have  waived  all  objection  to  them.  When  excepted  to,  the  plaintiff's  sm-eties, 
upon  notice  to  the  defendant  of  not  less  than  two  days  nor  more  than  five  days, 
must  justify  before  a  judge  of  the  district  or  probate  court,  or  before  a  county 
clerk,  and  upon  failure  to  justify,  or  if  others  in  their  place  faU  to  justify,  at  the 
time  and  place  appointed,  the  clerk  or  judge  shall  issue  an  order  vacating  the  writ 
of  attachment. 

§  181. — Actions  may  be  commenced,  and  writs  of  attachment  issued,  upon  any 
debt  for  the  payment  of  money  or  specific  property,  before  the  same  shall  have 
become  due,  when  it  shall  appear  by  the  affidavit,  in  addition  to  what  is  required 
in  section  179  of  this  act,  Jirst,  that  the  defendant  is  leaving,  or  is  about  to  leave, 
this  territory,  taking  with  him  or  her  property,  moneys,  or  other  effects,  which 
might  be  subjected  to  the  payment  of  the  debt,  for  the  purpose  of  defrauding  his 
creditors;  or,  second,  that  the  defendant  is  disposing  of  his  property  or  is  about  to 
dispose  of  his  property  subject  to  execution,  for  the  purjiose  of  defrauding  his 
creditors:  Provided,  that  any  judgment  obtained  under  the  provisions  of  this  sec- 


MONTANA.  603 

tion  shall  be  with  a  rebatement  of  the  interest  from  the  time  said  judgment  is 
reuderud  until  the  time  at  which  said  debt  would  have  become  due:  Aitd  provided, 
also,  that  the  defendant  may,  by  a  plea,  put  in  issue  the  matter  alleged  in  the  affi- 
davit herein  rec[uired,  and  if  the  plaintiff  fail  to  substantiate  some  one  of  the 
causes  required  to  be  alleged  in  said  affidavit,  the  suit  for  debt  or  debts  not  due 
shall  abate. 

§  182. — The  writ  shall  be  directed  to  the  sheriff  of  any  county  in  which  prop- 
erty of  such  defendant  may  be,  and  require  him  to  attach  and  safely  keep  all  the 
property  of  such  defendant  within  his  county,  not  exempt  from  execution,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount  of 
which  shall  be  stated  in  conformity  with  the  complaint,  unless  the  defendant  de- 
posit the  amount  or  give  him  security  by  the  undertaking  of  at  least  two  sufficient 
sureties,  in  an  amount  sufficient  to  satisfy  such  demand,  besides  costs,  or  in  an 
amount  equal  to  the  value  of  the  property  which  has  been  or  is  about  to  be  at- 
tached, in  which  case,  to  take  such  undertaking;  several  writs  may  be  issued  at 
the  same  time  to  the  sheriffs  of  different  counties. 

§  183. — The  rights  of  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  company,  together  with  the  interest  and  profits  thereon,  and  all 
debts  due  such  defendant,  and  all  other  property  in  this  territory  of  such  defend- 
ant not  exempt  from  execution,  may  be  attached,  and,  if  judgment  be  recovered, 
be  sold  to  satisfy  the  judgment  and  execution. 

§  184. — The  sheriff  to  whom  the  virrit  is  directed  and  delivered  shall  execute  the 
same  without  delay,  and  if  the  undertaking  mentioned  in  section  182  be  not  given, 
as  follows: 

First.  Eeal  property  shall  be  attached  by  filing  with  the  recorder  of  the  county 
a  copy  of  the  writ,  together  with  a  description  of  the  property  attached  and  a 
notice  that  it  is  attached. 

Second.  Keal  property  or  any  interest  therein,  belonging  to  the  defendant,  and 
standing  upon  the  records  of  the  county  in  the  name  of  any  other  person,  shall  be 
attached  by  filing  with  the  recorder  of  the  county  a  copy  of  the  ■writ,  together  with 
a  description  of  the  j^roperty,  and  a  notice  that  such  real  property,  and  any  inter- 
est of  the  defendant  therein  standing  in  the  name  of  such  other  person,  naming 
him,  are  attached. 

Third.  Personal  property  capable  of  manual  delivery  shall  be  attached  by  tak- 
ing it  into  custody. 

Fourth.  Stock  or  shares,  or  any  interest  in  stock  or  shares,  of  any  corporation 
or  company,  shall  be  attached  by  leaving  Avith  the  president  or  other  head  of  the 
same,  or  the  secretary  or  cashier  of  the  same,  or  other  managing  agent  thereof,  a 
coi^y  of  the  writ,  and  a  notice  stating  that  the  stock  or  interest  of  defendant  is 
attached  in  pursuance  of  such  ■writ. 

Fifth.  Debts  and  credits,  and  other  personal  property  not  capable  of  manual 
delivery,  shall  be  attached  by  leaving  with  the  person  owing  such  debts,  or  having 
in  his  possession  or  under  his  control  such  credits  and  other  personal  property,  or 
with  his  agent,  a  copy  of  the  writ,  and  a  notice  that  the  debts  owing  by  him  to  the 
defendant,  or  the  credits  and  other  personal  property  in  his  possession,  or  under 
his  control,  belonging  to  the  defendant,  are  attached  in  pursuance  of  such  writ. 
[Amended  Stats.  1885,  p.  113.] 

§  185. — It  shall  be  the  duty  of  the  county  recorder  to  file  and  safely  keep  such 
copy  of  the  ^vrit  and  description  of  the  property,  subject  to  the  inspection  of  all 
persons;  and  such  recorder  shall  receive  a  fee  of  twenty-five  cents  for  such  filing 
and  safe-keeping  of  said  list,  to  be  paid  by  the  plaintiff  in  the  action  and  taxed  and 
allowed  to  him  as  other  costs  and  disbursements  in  the  action. 

§  186. — Upon  receiving  isformation  in  writing  from  the  plaintiff  or  his  attorney 
that  any  person  has  in  his  i:)Ossession,  or  under  his  control,  any  credits  or  other 
personal  ])roperty  belonging  to  the  defendant,  or  is  owing  any  debt  to  the  defend- 
ant, the  sheriff  shall  serve  upon  such  person  a  copy- of  the  writ,  and  a  notice  that 
such  ci'edits  or  other  property  or  debts,  as  the  case  may  be,  are  attached  in  pursu- 
ance of  such  writ. 

§  187. — All  persons  having  in  their  possession,  or  under  their  control,  any  cred- 
its or  other  personal  property  belonging  to  the  defendant,  or  owing  any  debts  to 
the  defendant  at  the  time  of  service  upon  them  of  a  copy  of  the  writ  and  notice  as 
provided  in  the  last  section,  shall  be,  unless  such  property  be  delivered  up  or 
transferred,  or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaintiff  for  the 
amount  of  such  credits,  property,  or  debts,  until  the  attachment  be  dischai'ged,  or 
any  judgment  recovered  by  him  be  satisfied. 


604  MONTANA. 

§  188. — Any  person  owing  debts  to  the  defendant,  or  having  in  his  possession, 
or  imdor  Lis  control,  any  credits  or  other  personal  property  belonging  to  the  de- 
fendant, may  be  required  to  attend  before  the  court  or  judge,  or  a  referee  ap- 
pointed by  the  court  or  judge,  and  be  examined  on  oath  respecting  the  same.  The 
defendant  may  also  be  required  to  attend  for  the  purpose  of  giving  information  re- 
specting his  property,  and  may  be  examined  on  oath.  The  court  or  judge  may, 
after  such  examination,  order  personal  property  capable  of  manual  dehvery  to  be 
delivered  to  the  sheriff  upon  such  terms  as  may  be  just,  having  reference  to  any 
liens  thereon,  or  claims  against  the  same,  and  a  memorandum  to  be  given  of  all 
other  personal  property,  containing  the  amount  and  description  thereof. 

§  189. ^The  sheriff  shall  make  a  full  inventory  of  the  property  attached,  and  re- 
turn the  same  with  the  writ.  To  enable  him  to  make  such  return  as  to  debts  and 
credits  attached,  he  shall  request,  at  the  time  of  service,  the  party  ovsdng  the  debt, 
or  having  the  credit,  to  give  hhn  a  memorandtun,  stating  the  amount  and  descrip- 
tion of  each;  and  if  such  memorandum  be  refused,  he  shall  return  the  fact  of  re- 
fusal with  the  wi'it.  The  party  refusing  to  give  the  memorandum  may  be  required 
to  pay  the  costs  of  any  proceedings  taken  for  the  purpose  of  obtaining  information 
respecting  the  amount  and  description  of  such  debt  or  credit. 

§  190. — If  any  of  the  property  attached  be  perishable,  the  sheriff  shall  sell  the 
same  in  the  manner  in  which  such  property  is  sold  on  execution.  The  proceeds, 
and  other  jiroperty  attached  by  him,  shall  be  retained  by  him  to  answer  any  judg- 
ment that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution 
upon  another  j  udgment  recovered  previous  to  the  issuing  of  the  attachment.  Debts 
and  credits  attached  may  be  collected  by  him,  if  the  same  can  be  done  without 
Buit.     The  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the  amount  paid. 

§  191. — ^If  any  personal  property  attached  be  claimed  under  oath  by  a  third 
party  as  his  property,  the  sheriff  shall  deliver  the  property  to  such  third  party 
within  five  (.5)  days,  if  the  i:)lainti£f  resides  within  the  county,  otherwise  ten  days, 
after  notice  to  plaintiff's  attorney,  unless  that  plaintiff  give  to  the  sheriff  good  and 
sufficient  bond  to  indemnify  him  against  loss  or  damage  by  reason  of  holding  such 
property. 

§192. — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall  satisfy  the 
same  out  of  the  property  attached  by  him,  which  has  not  been  delivered  to  the  de- 
fendant, or  claimant,  as  hereinbefore  provided,  or  subjected  to  execution  on  another 
judgment  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be  sufficient  for 
that  purpose,  first,  by  paying  the  plaintiff  the  proceeds  of  all  sales  of  perishable 
property  sold  by  him,  or  any  debts  or  credits  collected  by  him,  or  so  much  as  shall 
oe  necessary  to  satisfy  the  judgment;  second,  if  any  balance  remain  due,  and  an 
execution  shall  have  been  issued  on  the  judgment,  he  shall  sell,  under  the  execu- 
tion, so  much  of  the  property,  real  or  personal,  as  may  be  necessary  to  satisfy  the 
balance,  if  enough  for  that  purpose  remain  in  his  hands.  Notices  of  the  sales  shall 
be  given  and  the  sales  conducted  as  in  other  cases  of  sales  on  execution. 

§  19.3.  — If,  after  selling  all  the  property  attached  by  him  remaining  in  his  hands, 
and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts  or  credits  col- 
lected by  him,  deducting  his  fees,  to  the  payment  of  the  judgment,  any  balance  .'ihaU 
remain  due,  the  sheriff  shall  proceed  to  collect  such  balance  as  upon  an  execution 
in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  sheriff,  uj^on 
reasonable  demand,  shall  deliver  over  to  the  defendant  the  attached  jiroperty  re- 
maining in  his  hands,  and  any  proceeds  of  the  property  attached  unapphed  on  the 
judgment. 

§  194. — If  the  execution  be  returned  unsatisfied  in  whole  or  in  part,  the  plaintiff 
may  prosecute  any  undertaking  given  pursuant  to  section  197,  or  he  may  proceed 
as  in  other  cases,  upon  the  return  of  an  execution. 

§  195. — If  the  defendant  recover  judgment  against  fhe  plaintiff,  any  undertak- 
ing received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  shall  be  de- 
livered to  the  defendant  or  his  agent.  The  order  of  attachment  shall  be  discharged 
and  the  projierty  released  therefrom. 

§  196.  -The  defendant  may,  at  any  time,  release  any  property  in  his  hands  to  the 
sheriff,  by  virtue  of  any  writ  of  attachment,  by  executing  an  undertaking  as  pro- 
vided for  in  the  next  section;  and  all  proceeds  of  sales  and  money  collected  by  the 
sheriff,  and  all  the  property  attached  remaining  in  his  hands,  shall  be  released  from 
the  attachment  and  delivered  to  the  defendant,  upon  the  justification  of  the  sure- 
ties and  the  undertaking. 

§  197.  — Before  releasing  such  attached  property,  as  aforesaid,  to  the  defendant, 
the  sheriff  shall  require  an  undertaking  executed  by  the  defendant,  and  at  least 


MONTANA.  605 

two  sureties,  residents  and  freeholders,  or  householders  in  the  countj'',  to  the  effect 
that  in  case  the  plaintiff  recover  judgment  in  the  action,  defendant  will,  on  de- 
mand, redeliver  such  attached  property  so  released  to  the  proj^er  officer,  to  Le  ap- 
plied to  the  payment  of  the  judgment,  and  that  in  default  thereof,  the  defendant 
and  sureties  will  pay  to  the  plaintiff  the  full  value  of  the  property  so  released.  The 
sheriff  may  fix  the  sum  for  which  the  undertaking  shall  be  executed,  and  if  neces- 
sary, in  fixing  such  sum,  to  know  the  value  of  the  property  released,  the  same  may 
be  appraised  by  three  disinterested  persons,  to  be  appointed  by  the  sheriff;  and  if 
any  sheriff  shall  release  any  property  held  by  him,  under  or  by  virtue  of  any  writ 
of  attachment,  without  first  taking  such  bond  as  herein  required,  or  shall  take  an 
insufficient  bond,  he  and  his  sureties  shall  be  liable  for  the  value  of  such  prop- 
erty so  released. 

§  198.  ^The  defendant  may  also,  at  any  time  before  the  time  for  answering  ex- 
pires, apply,  on  motion,  upon  reasonable  notice  to  the  plaintiff,  to  the  court  in. 
which  the  action  is  brought,  or  the  judge  thereof,  that  the  attachment  be  dis- 
charged on  the  ground  that  the  writ  was  improperly  issued. 

§  199. — If  the  motion  be  made  upon  affidavits  on  the  part  of  defendant,  but  not 
otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other  evidence,  in  ad- 
dition to  those  on  which  the  order  of  attachment  was  made. 

§  200.  — If,  upon  such  apjilication,  it  shall  satisfactorily  appear  that  the  writ  of 
attachment  was  improperly  issued,  it  shall  be  discharged. 

§  201. — The  sheriff  shall  return  the  writ  of  attachment  with  the  summons,  if 
issued  at  the  same  time,  otherwise  within  twenty  days  after  its  receipt,  with  a 
certificate  of  his  proceedings  indorsed  thereon  or  attached  thereto. 

§  202. — All  liens  by  attachment  shall  accrue  at  the  time  the  property  of  the  de- 
fendant shall  be  attached  by  the  officer  charged  with  the  execution  of  the  -wi-it,  in 
the  order  in  which  they  are  levied;  and  said  liens  shall  not  be  affected  by  any  sub- 
sequent attachment,  or  by  any  judgment  obtained  subsequent  thereto:  Provided, 
that  if  two  or  more  attachments  shall  be  levied  upon  the  same  property  at  the  same 
time,  they  shall  share  2}'>'o  rata  in  the  proceeds  of  said  property;  but  in  all  cases  the 
first  attachment  levied  shall  be  first  satisfied:  Provided,  furilitr,  that  the  first  writ 
placed  in  the  hands  of  the  officer  shall  be  levied  first. 

§203. — There  shall  be  kept  in  the  recorder's  office  of  the  county  recorder  of 
each  coimty  a  book  called  "Attachment  Book,"  in  which  shall  be  entered  by  such 
recorder,  in  alph.abetical  form,  the  names  of  any  person  or  persons  against  whom 
any  writ  or  notice  of  attachment  has  been  filed  in  his  office;  there  shall  also  be  en- 
tered in  said  book  the  time  such  writ  was  filed.  Such  entries  shall  be  made  under 
appropriate  heads  for  that  purpose.  For  making  such  entry  the  recorder  shall  re- 
ceive twenty-five  cents,  to  be  paid  by  the  plaintiff  in  the  action,  and  taxed  and 
allowed  to  him  as  other  costs  and  disbursements  in  the  action. 


Attachment  of  boats— Sees.  204-220. 

Before  justices  of  the  peace — Sees.  734-737. 

Of  cattle,  etc.,  on  range — Stats.  1885,  p.  111. 

For  taxes— Sec.  1028. 

Mortgaged  chattels  taken  on — Stats.  1881,  p.  4,  sec.  5. 

Exemptions — Page  G36,  sec.  1078,  y.  100;  sees.  310,  311;  may  be  is.?ned  on  any 
day,  sec.  514;  may  issue  from  probate  court,  sec.  690;  sale  of  property  attached. 
Bee.  524. 


606  NEBRASKA. 

NEBRASKA. 

[Compiled  Laws,  1881.] 


CHAPTER  III. 

ATTACHMENTS. 


§  198. — The  plaintiff  in  a  civil  action  for  the  recovery  of  money,  may,  at  or  after 
the  commencement  thereof,  have  an  attachment  against  the  property  of  the  defend- 
ant, and  upon  the  grounds  herein  stated: 

Fb'st.  When  the  defendant,  or  one  of  several  defendants,  is  a  foreign  corpora- 
tion, or  a  non-resident  of  this  state;  or, 

Second.    Has  absconded  with  the  intent  to  defraud  his  creditors;  or. 
Third.   Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or, 
Fourth.    So  conceals  himself  that  af  summons  cannot  be  served  upon  him;   or. 
Fifth.    Is  about  to  remove  his  jiroperty,  or  a  part  thereof,  out  of  the  jurisdic- 
tion of  the  court,  with  the  intent  to  defraud  his  creditors;  or. 

Sixth.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the 
purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or, 

Seventh.   Has  property,  or  rights  in  action,  which  he  conceals;  or. 
Eighth.    Has  assigned,  removed,  disposed  of,  or  is  about  to  dispose  of,  his  prop- 
erty, or  a  part  thereof,  with  the  intent  to  defraud  his  creditors;  or. 

Ninth.  Fraudulently  contracted  the  debt  or  incurred  the  obligation  for  which 
Biiit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  groimd  that  the  defendant  is  a 
foreign  corporation,  or  a  non-resident  of  the  state,  for  any  claim  other  than  a  debt 
or  demand  arising  upon  contract,  judgment,  or  decree. 

§  199. — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  in  any  case  mentioned  in  the  preceding  section,  when  there 
is  filed  in  his  office  an  affidavit  of  the  ijlaintiff,  his  agent,  or  attorney,  showing: 

First.    The  nature  of  the  plaintiiS's  claim. 

Second.    That  it  is  just. 

Third.    The  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover. 

Fourth.  The  existence  of  some  one  of  the  groimds  for  an  attachment  enumer 
ated  in  the  preceding  section. 

§  200. — ^\^len  the  ground  of  the  attachment  is,  that  the  defendant  is  a  foreign 
corporation,  or  a  non-resident  of  the  state,  the  order  of  attachment  may  be  issued 
without  an  undertaking.  In  all  other  cases,  the  order  of  attachment  shall  not  be 
issued  by  the  clerk  until  there  has  been  executed  in  his  office,  by  one  or  more  suf- 
ficient sureties  of  the  plaintiff,  to  be  approved  by  the  clerk,  an  vmdertaking  not 
exceeding  double  the  amount  of  the  plaintiff's  claim,  to  the  effect  that  the  plaintiff 
shall  pay  the  defendant  all  damages  which  he  may  sustain  by  reason  of  the  attach- 
ment, if  the  order  be  wrongfully  obtained. 

§  201.— The  order  of  attachment  shall  be  directed  and  delivered  to  the  sheriff. 
It  shall  requu-e  him  to  attach  the  lands,  tenements,  goods,  chattels,  stocks,  or  in- 
terests in  stocks,  rights,  credits,  moneys,  and  effects  of  the  defendant  in  his  county 
not  exempt  by  law  from  being  applied  to  the  payment  of  the  plaintiff's  claim,  or  so 
much  thereof  as  wiU  satisfy  the  i^laintiff's  claim,  to  be  stated  in  the  order  as  in  the 
affidavit,  and  the  probable  costs  of  the  action,  not  exceeding  fifty  dollars. 

§  202. — Orders  of  attachment  may  be  issued  to  the  sheriff  of  different  counties; 
and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same  time, 
or  in  succession;  but  such  only  as  have  been  executed  shall  be  taxed  in  the  costs, 
unless  otherwise  directed  by  the  court. 

§  203. — The  return  day  of  the  order  of  attachment,  when  issued  at  the  com- 
mencement of  the  action,  shall  be  the  same  as  that  of  the  summons;  when  issued 
afterward,  it  shall  be  twenty  days  after  it  is  issued. 


NEBRASKA.  607 

EXECUTION  AND  EETURN. 

§  204. — When  there  are  several  orders  of  attachment  against  the  same  defend- 
ant, they  shall  be  executed  in  the  order  in  which  they  are  received  by  the  sheriff. 

§  205. — The  order  of  attachment  shall  be  executed  by  the  sheriff  without  delay. 
He  shall  go  to  the  place  where  the  defendant's  property  may  be  found,  and  there 
in  the  i^resence  or  two  residents  of  the  county,  declare  that  by  virtue  of  said  order 
he  attaches  said  property  at  the  suit  of  such  plaintiff;  and  the  officer,  with  the  said 
residents,  who  shall  be  first  sworn  or  affirmed  by  the  ofiicer,  shall  make  a  true  inven- 
tory and  appraisement  of  all  the  property  attached,  which  shall  be  signed  by  the 
officer  and  residents,  and  retm-ned  with  the  order.  Where  the  property  attached  is 
real  property,  the  officer  shall  leave  with  the  occupant  thereof,  or,  if  there  be  no  oc- 
cupant, in  a  conspicuous  place  thereon,  a  copy  of  the  order.  Where  it  is  personal 
property,  and  accessible,  he  shall  take  the  same  into  his  custody,  and  hold  it  subject 
to  the  order  of  the  court. 

§  206.— The  sheriff  shaU  deliver  the  property  attached  to  the  person  in  whose 
possession  it  wa.s  found,  upon  the  execution  by  such  person,  in  the  presence  of  the 
sheriff,  of  an  imdertaking  to  the  plaintiff,  with  one  or  more  sufficient  sureties,  resi- 
dent in  the  county,  to  the  effect  that  the  parties  to  the  same  are  bound  in  double 
the  appraised  value  thereof,  that  the  property  or  its  appraised  value  in  money  shall 
be  forthcoming  to  answer  the  judgment  of  the  court  in  the  action;  but  if  it  shall 
appear  to  the  court  that  any  part  of  said  property  has  been  lost  or  destroyed  by  un- 
avoidable accident,  the  value  thereof  shall  be  remitted  to  the  person  so  bound. 

§  207. — When  the  plaintiff,  his  agent  or  attorney,  shall  make  oath,  in  writing, 
that  he  has  good  reason  to  and  does  believe  that  any  person  or  corporation,  to  be 
named  and  -w-ithin  the  coimty  where  the  action  is  brought,  has  property  of  the 
defendant  (describing  the  same)  in  his  possession,  if  the  officer  cannot  come  at  such 
property,  he  shall  leave  with  such  garnishee  a  copy  of  the  order  of  attachment, 
with  a  -m-itten  notice  that  he  appear  in  court,  at  ttie  retm-n  of  the  order  of  attach- 
ment, and  answer,  as  provided  in  section  two  hundred  and  twenty-one. 

§  208. — The  copy  of  the  order  and  the  notice  shaU  be  served  upon  the  garnishee 
as  follows:  If  he  be  a  person,  they  shall  be  served  upon  him  personally,  or  left  at 
his  usual  place  of  residence;  if  a  corporation,  they  shall  be  left  with  the  president 
or  other  officer  of  the  same,  or  a  managing  agent  thereof. 

§  209. — Different  attachments  of  the  same  property  may  be  made  by  the  same 
officer,  and  one  inventory  and  appraisement  shall  be  sufficient,  and  it  shall  not  be 
necessary  to  return  the  same  with  more  than  one  order. 

§  210. — "Where  the  property  is  under  attachment,  it  shaU  be  attached  imder  sub- 
sequent orders  as  follows: 

First.  If  it  be  real  property,  it  shall  be  attached  in  the  manner  prescribed  in 
section  two  hundred  and  five. 

Secornl.  If  it  be  personal  property,  it  shall  be  attached  as  in  the  hands  of  the 
officer,  and  subject  to  any  previous  attachment. 

Third.  If  the  same  person  or  corporation  be  made  a  garnishee,  a  copy  of  the 
order  and  notice  shall  be  left  with  him,  in  the  manner  prescribed  in  section  two 
hundred  and  seven. 

§  211. — The  officer  shall  return  upon  every  order  of  attachment  what  he  has 
done  under  it.  The  return  must  show  the  property  attached,  and  the  time  it  was 
attached.  ^Vhen  garnishees  are  served,  their  names,  and  the  time  each  was  served, 
must  be  stated.  The  officer  shall  also  return  with  the  order  all  undertakings  given 
under  it. 

§  212. — An  order  of  attachment  binds  the  property  attached  from  the  time  of 
service,  and  the  garnishee  shall  stand  liable  to  the  plaintiff  in  attachment  fcr  all 
property,  monej's,  and  credits  in  his  hands,  or  due  from  him  to  the  defendant, 
from  the  time  he  is  served  with  the  written  notice  mentioned  in  section  two  hun- 
dred and  seven;  but  where  the  property  is  attached  in  the  hands  of  a  consignee,  his 
lien  thereon  shall  not  be  affected  by  the  attachment. 

DISPOSITION  OF  ATTACHED  PROPERTY. 

§  21.3.— The  court,  or  any  judge  thereof  during  vacation,  may,  on  the  applica- 
tion of  the  plaintiff,  and  on  good  cause  shown,  appoint  a  receiver,  who  shall  take 
an  oath  faithfully  to  discharge  his  duty;  and  shall  give  an  undertaking  to  the  state 
of  Nebraska,  in  such  sum  as  the  court  or  judge  may  direct,  and  with  such  security 
as  shall  be  approved  by  the  clerk  of  the  court,  for  the  faithful  performance  of  his 
duty  as  such  receiver,  and  to  pay  over  all  money,  and  account  for  all  property. 


608  NEBRASKA. 

which  may  come  into  his  hands  by  virtue  of  his  apjKjintment,  at  such  times  and  in 
such  manner  as  the  court  maj'  direct. 

§  214. — Such  receiver  shall  take  possession  of  all  notes,  due-bills,  books  of  ac- 
count, accounts,  and  all  other  evidences  of  debt,  that  have  been  taken  by  the  sher- 
iff or  other  officer,  as  the  i:)roperty  of  the  defendant  in  attachment,  and  shall 
proceed  to  settle  and  collect  the  same.  For  that  purpose,  he  may  commence  and 
maintain  actions  in  his  ovm  name  as  such  receiver;  but  in  such  action  no  right  of 
defense  shall  be  impaired  or  affected. 

§  215.— Such  receiver  shall  forthwith  give  notice  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant  in  attachment.  The  notice  shall  be  written  or 
printed,  and  shall  be  served  on  the  debtor  or  debtors  by  copy  personally,  or  by 
copy  left  at  the  residence;  and  from  the  date  of  such  service,  the  debtors  shaU 
stand  liable  to  the  plaintiff  in  attachment  for  the  amount  of  moneys  and  credits  in 
their  hands,  or  due  from  them  to  the  defendant  in  attachment,  and  shall  account 
therefor  to  the  receiver. 

§  216.  — Such  receiver  shall,  when  required,  report  his  proceedings  to  the  court, 
and  hold  all  moneys  collected  by  him,  and  property  which  may  come  into  his 
hands,  subject  to  the  order  of  the  court. 

§  217. — "Where  a  receiver  is  not  appointed  by  the  covtrt  or  a  judge  thereof,  as 
provided  in  section  two  hundred  and  thirteen,  the  sheriff  or  other  officer  attaching 
the  property  shall  have  all  the  powers  and  perform  all  the  duties  of  a  receiver  ap- 
pointed by  the  court  or  a  judge,  and  may,  if  necessary,  commence  and  maintain 
actions  in  his  own  name  as  such  officer.  He  may  be  required  to  give  security, 
other  than  his  official  undertaking. 

§  218. — The  court  shall  make  proper  orders  for  the  preservation  of  the  property 
during  the  pendency  of  the  suit.  It  may  direct  the  sale  of  property  when,  because 
of  its  perishable  nature,  or  the  costs  of  keeping  it,  a  sale  will  be  for  the  benefit  of 
the  parties.  In  vacation,  such  sale  may  be  ordered  by  the  judge  of  the  court.  The 
sale  shall  be  public,  after  such  advertisement  as  is  prescribed  for  the  sale  of  Uke 
projierty  on  execution,  and  shall  be  made  in  such  manner,  and  upon  such  terms  of 
credit,  with  security,  as  the  court  or  judge,  having  regard  to  the  probable  duration 
of  the  action,  may  direct.  The  proceeds,  if  collected  by  the  sheriff,  with  aU  the 
moneys  received  by  him  from  garnishees,  shall  be  held  and  paid  over  by  him,  un- 
der the  same  requirements  and  responsibilities  of  himself  and  sureties  as  are  pro- 
vided in  respect  to  money  deposited  in  lieu  of  bail. 

PKOCEEDIN'GS  UPON  ATTACHMENT. 

§  219. — If  the  defendant,  or  any  other  person  on  his  behalf,  at  any  time  before 
judgment,  cause  an  undertaking  to  be  executed  to  the  plaintiff  by  one  or  more 
sureties  resident  in  the  county,  to  be  approved  by  the  coxirt,  in  double  the  amount 
of  the  plaintiff's  claim  as  stated  in  his  affidavit,  to  the  effect  that  the  defendant 
shall  perform  the  judgment  of  the  court,  the  attachment  in  such  action  shall  be 
discharged,  and  restitution  made  of  any  property  taken  under  it,  or  the  proceeds 
thereof.  Such  undertaking  shall  also  discharge  the  UabiUty  of  a  garnishee  in  such 
action  for  any  p)roperty  of  the  defendant  in  his  hands. 

§  220. — The  undertaking  mentioned  in  the  last  section  may,  in  vacation,  be  exe- 
cuted in  the  presence  of  the  sheriff  having  the  order  of  attachment  in  his  hands,  or, 
after  the  return  of  the  order,  before  the  clerk,  with  the  same  effect  as  if  executed 
in  court;  the  sureties  in  either  case  to  be  approved  by  the  officer  before  whom  the 
imdertaking  is  executed. 

§  221. — The  garnishee  shall  appear  as  follows:  If  the  order  of  attachment  be 
returned  during  a  term  of  court,  he  shall  appear  at  that  term;  if  the  order  be  rC' 
turned  during  vacation,  he  shall  appear  at  the  term  next  after  its  retiuTi.  He 
shall  appear  and  answer  under  oath  all  the  questions  put  to  him  touching  the  prop- 
erty of  every  description  and  credits  of  the  defendant  in  his  possession  or  under  ms 
control,  and  he  shall  disclose  truly  the  amount  owing  by  him  to  the  defendant, 
whether  due  or  not,  and  in  case  of  a  corporation,'  any  stock  therein  held  by  or  for 
the  benefit  of  the  defendant,  at  or  after  the  service  of  notice.  But  a  garnishee 
shall  not  be  required  to  appear  in  this  or  in  any  other  case,  unless  there  is  tendered 
to  him  the  same  fees  as  a  witness  is  entitled  to  in  the  suit  in  which  t'.e  garnishee 
proceedings  are  had,  and  such  fees  may  be  taxed  and  collecteti  in  the  same  manner 
as  other  costs  in  such  jjroceedings.    (Amended  1877, 10.    Took  effect  June  1, 1877.) 

§  222. — A  garnishee  may  pay  the  money  owing  to  the  defendant  by  him  to  the 
sheriff  ha\ing  the  order  of  attachment,  or  into  court.  He  shall  be  discharged  from 
liability  to  the  defendant,  for  any  money  so  paid,  not  exceeding  the  plaintiff's 


NEBRASKA.  609' 

claim.  He  shall  not  he  subjected  to  costs  beyond  those  caused  by  his  resistance  of 
the  claim  against  him;  and  if  he  disclose  the  property  in  his  hands,  or  the  true 
amount  owing-  by  him,  and  deliver  or  pay  the  same  according  to  the  order  of  the 
coiu-t,  he  shaU  be  allowed  his  costs. 

§  223. — If  the  garnishee  do  not  appear  in  court  and  answer,  as  required  by  sec- 
tion two  hundred  and  twenty-one,  the  court  may  proceed  against  him  by  attach- 
ment as  for  a  contempt. 

§  224. — If  the  garnishee  appear  and  answer,  and  it  is  discovered  on  his  examina- 
tion that  at  or  after  the  service  of  the  order  of  attachment  and  notice  upon  lum,  he 
was  possessed  of  any  property  of  the  defendant,  or  was  indebted  to  him,  the  court 
may  order  the  delivery  of  such  property  and  the  payment  of  the  amount  owing  by 
the  garnishee,  into  the  court;  or  the  court  may  i^ermit  the  garnishee  to  retain  the 
property  or  the  amount  owing,  upon  the  execution  of  an  undertaking  to  the  plaint- 
iff by  one  or  more  sufficient  siu"eties,  to  the  effect  that  the  amount  shall  be  paid, 
or  the  property  forthcoming,  as  the  court  may  direct. 

§  225. — If  the  garnishee  fail  to  appear  and  answer,  or  if  he  appear  and  answer, 
and  his  disclosure  is  not  satisfactory  to  the  plaintiff,  or  if  he  fail  to  comply  with 
the  order  of  the  court,  or  deliver  the  property  and  pay  the  money  owing  into  court, 
or  give  the  undertaking  required  in  the  preceding  section,  the  plaintiff  may  proceed 
against  him  in  an  action,  by  filing  a  petition  in  his  own  name,  as  in  other  cases, 
and  causing  a  summons  to  be  issued  ui^on  it;  and  thereiipon  such  proceedings  may 
be  had  as  in  other  actions,  and  judgment  may  be  rendered  in  favor  of  the  plaintiff, 
for  the  amount  of  the  property  and  credits  of  every  kind  of  the  defendant  in  the 
possession  of  the  garnishee,  and  for  what  shall  aj^pear  to  be  owing  by  him  to  the 
defendant,  and  for  the  costs  of  the  proceedings  against  the  gamisbee.  If  the  plaint- 
iff proceed  against  the  garnishee  by  action,  for  the  cause  that  his  disclosure  was 
unsatisfactorj^,  unless  it  appear  in  the  action  that  such  disclosure  was  incomplete, 
tbe  plaintiff  shall  pay  the  costs  of  such  action.  The  judgment  in  this  action  may 
be  enforced  as  judgments  in  other  cases.  When  the  claims  of  the  plaintiff  in  at- 
tachment are  satisfied,  the  defendant  in  attachment  may,  on  motion,  be  substi- 
tuted as  the  plaintiff  in  the  judgment. 

§226. — Final  judgment  shaU  not  be  rendered  against  the  garnishee  until  the 
action  against  the  defendant  in  attachment  has  been  determined;  and  if  in  such 
action  judgment  be  rendered  for  the  defendant  in  attachment,  the  garnishee  .shall 
be  discharged  and  recover  costs.  If  the  plaintiff  shall  recover  against  the  defend- 
ant in  attachment,  and  the  garnishee  shall  deliver  up  all  the  property,  moneys,  and 
credits  of  the  defendant  in  his  possession,  and  pay  all  the  moneys  from  him  due  as  ■ 
the  coiu-t  may  order,  the  garnishee  shall  be  discharged,  and  the  costs  of  the  pro- 
ceedings against  him  shall  be  paid  out  of  the  property  and  moneys  so  surrendered, 
or  as  the  com-t  may  think  right  and  proper. 

§  227. — If  judgment  be  rendered  in  the  action  for  the  defendant,  the  attachment 
shall  be  discharged,  and  the  property  attached,  or  its  proceeds,  shall  be  returned  to 
him. 

§  228. — If  judgment  be  rendered  for  the  plaintiff,  it  shall  be  satisfied  as  follows: 
So  much  of  the  property  remaining  in  the  hands  of  the  officer,  after  applying  the 
monej^s  arising  from  the  sale  of  perishable  property,  and  so  much  of  the  personal 
jjroperty,  lands  and  tenements,  if  any,  whether  held  by  legal  or  equitable  title,  as 
may  be  neces.sary  to  satisfy  the  judgment,  shall  be  sold  by  order  of  the  court,  under 
the  same  restrictions  and  regnlations  as  if  the  same  had  been  levied  on  by  execu- 
tion; and  the  money  arising  therefrom,  with  the  amount  which  may  be  recovered 
from  the  garnishee,  shall  be  apj^lied  to  satisfy  the  judgment  and  costs.  If  there 
be  not  enough  to  satisfy  the  same,  the  judgment  shall  stand,  and  execution  may 
issue  thereon  for  the  residue,  in  all  respects  as  in  other  cases.  Any  siu-plus  of  the 
attached  property,  or  its  proceeds,  shall  be  retm-ned  to  the  defendant. 

§  229. — The  court  may  compel  the  delivery  to  the  sheriff,  for  sale,  of  any  of  thq 
attached  property  for  which  an  undertaking  may  have  been  given,  and  may  pro- 
ceed summarily  on  such  undertaking,  to  enforce  the  delivery  of  the  property,  or 
the  pajTQent  of  such  sum  as  may  be  due  upon  the  undertaking,  by  rules  and  attach- 
ments, as  in  cases  of  contempt. 

§  230. — The  court  may  order  the  sheriff  to  repossess  himself,  for  the  piu-pose  of 
selling  it,  of  any  of  the  attached  property  which  may  have  passed  out  of  his  hands  ■ 
without  having  been  sold  or  converted  into  money;  and  the  sheriff  shall,  xmder 
such  order,  have  the  same  power  to  take  the  property  as  he  would  have  imder  au- 
order  of  attachment. 

•    II    ATTArTTMRXT— 14. 


610  NEBRASKA. 

§  231. — If  personal  property  which  has  been  attached,  be  claimed  by  any  person 
other  than  the  defendant,  it  shall  be  the  duty  of  the  officer  to  have  the  validity  of 
such  claim  tried,  and  such  proceedings  must  be  had  thereon,  ■with  the  like  effect, 
as  in  case  the  property  had  been  seized  upon  execution,  and  claimed  by  a  third 
person. 

§  232. — Where  several  attachments  are  executed  on  the  same  property,  or  the 
same  persons  are  made  garnishees,  the  court,  on  the  motion  of  any  of  the  plaintiffs, 
maj'  order  a  reference  to  ascertain  and  report  the  amoimts  and  priorities  of  the 
several  attachments. 

GENERAL   PE0VISI0N3. 

§  233. — From  the  time  of  the  issuing  of  the  order  of  attachment,  the' court  shall 
be  deemed  to  have  acquired  jurisdiction,  and  to  have  control  of  all  subsequent  pro- 
ceedings under  this  chapter;  and  if,  after  the  issuing  of  the  order,  the  defendant, 
being  a  person,  should  die,  or  a  corporation  and  its  charter  should  xpire  by  lim- 
itation, forfeiture,  or  otherwise,  the' proceeding  shall  be  carried  on;  but  in  all  cases 
other  than  where  the  defendant  was  a  foreign  corporation,  his  legal  representatives 
shall  be  made  parties  to  the  action. 

§  234.— The  defendant  may,  at  any  time  before  judgment,  after  reasonable  no- 
tice to  the  i^laintiff,  move  the  court  for  additional  security  on  the  part  of  the  plaint- 
iff;  and  if,  on  such  motion,  the  court  is  satisfied  that  the  surety  in  the  plaintiff's 
undertaking  has  removed  from  this  state,  or  is  not  sufficient  for  the  amount  thereof, 
it  may  vacate  the  order  of  attachment,  and  direct  restitution  of  any  property  taken 
under  it,  unless  in  a  reasonable  time,  to  be  fixed  by  the  court,  sufficient  security  is 
given  by  the  plaintiff. 

§  235. — The  defendant  may,  at  any  time  before  judgment,  upon  reasonable  no- 
tice to  the  plaintiff,  move  to  discharge  an  attachment,  as  to  the  whole  or  a  part  of 
the  property  attached. 

§  236. — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant,  or 
pajjers  and  evidence  in  the  case,  but  not  otherwise,  the  plaintiff  may  oppose  the 
same  by  affidavits  or  other  evidence,  in  addition  to  that  on  which  the  order  of  at- 
tachment was  made. 

§  236  a  (Sec.  1). — That  whenever  an  attachment  shall  issue  to  any  other  county 
than  the  one  in  which  the  action  is  brought,  and  any  lands  shall  be  attached  by 
virtue  thereof,  it  shall  be  duty  of  the  officer  attaching  said  property  to  make  out  a 
true  copy  of  said  order  of  attachment,  and  file  the  same  in  the  office  of  the  recorder 
of  deed^  of  the  county  where  the  lands  so  attached  are  situated.  He  shall  also 
certify  upon  said  copy  of  said  order  of  attachment,  that  the  same  is  a  true  copy  of 
the  original  writ  received  by  him,  and  he  shall  also  indorse  thereon  the  description 
of  the  projierty  attached,  and  the  time  when  the  same  was  attached  under  and  by 
virtue  of  the  original  order  of  attachment.     (G.  S.  714. ) 

§  236  h  (Sec.  2). — It  shall  be  the  duty  of  the  recorder  of  deeds  of  the  coxmty, 
when  the  copy  of  the  order  of  attachment  has  been  filed  as  provided  in  this  act,  to 
record  the  same  in  the  miscellaneous  record  together  with  the  certificate  of  the 
officers  heretofore  mentioned,  and  such  copy  of  said  orders  of  attachment,  and  cer- 
tificate so  filed  and  recorded,  shall  be  sufficient  notice  to  subsequent  purchasers  of 
said  land  so  attached  as  aforesaid. 

§  236  c  (Sec.  3). — If  the  order  of  attachment  be  discharged,  it  shall  be  the  duty 
of  the  clerk  of  the  com-t  in  which  the  action  is  brought,  to  certify  that  fact,  to- 
gether ■uith  the  time  when  the  order  was  discharged,  to  the  recorder  of  deeds  in 
whose  office  the  copy  of  said  order  has  been  recorded  as  aforesaid;  whereupon  such 
recorder  shall  file  such  certificate,  and  write  across  the  record  of  such  copy  the  word 
"discharged,"  and  also  the  time  of  discharge,  as  shown  in  said  certificate. 

§  236  d  (Sec.  4). — The  officer  for  making  out  said  copy  of  the  order  of  attach- 
ment, and  the  clerk  for  recording  the  same,  shall  each  receive  such  compensation 
as  is  now  allowed  by  law  for  similar  services,  to  be  taxed  in  the  costs,  unless  other- 
wise ordered  by  the  coiut. 

§  236  e  (Sec.  1). — That  when  an  order  discharging  an  order  of  attachment  is 
made,  and  any  party  affected  thereby  shall  except  thereto,  the  court  or  judge  shall 
fix  the  number  of  days,  not  to  exceed  twenty,  in  which  such  party  may  file  his 
petition  in  error,  during  which  time  the  property  attached  shall  be  held  by  the 
sheriff  or  other  officer,  during  which  period  the  petition  in  error  shall  be  filed,  and 
the  party  filing  the  same  shall  give  an  undertakmg  to  the  adverse  party,  ^vith  surety 
or  sureties,  to  be  approved  by  the  court,  in  double  the  amount  of  the  appraised 
value  of  the  property  attached,  conditioned  to  pay  said  adverse  party  aU  damages 


NEBRASKA.  611 

Bostained  by  such  party  in  consequence  of  the  filing  of  said  petition  in  error,  in  the 
event  that  such  order  of  attachment  shall  be  discharged  bj'  the  court,  in  which 
said  petition  in  error  shall  be  filed,  as  having  been  unlawfully  obtained.  (G.  S. 
715.) 

§236/ (Sec.  2). — The  original  action  shall  proceed  to  trial  and  judgment  in 
every  other  respect  as  though  no  writ  of  error  had  been  prosecuted. 

ATTACHMENTS  IN  CERTAIN   ACTIONS. 

§  237. — A  creditor  may  bring  an  action  on  a  claim  before  it  is  due,  and  have  an 
attachment  against  the  p'-operty  of  the  debtor,  in  the  following  cases: 

First,  where  a  debtor  has  sold,  conveyed,  or  otherwnse  disposed  of  his  prop- 
erty, with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to  hinder  or 
delay  them  in  the  collection  of  their  debts. 

Second.  Where  he  is  about  to  make  such  sale,  conveyance,  or  disposition  of  his 
property,  with  such  fraudulent  intent. 

Third.  Where  he  is  about  to  remove  his  property,  or  a  material  part  thereof, 
with  the  intent  or  to  the  effect  of  cheating  cr  defrauding  his  creditors,  or  of  hinder- 
ing or  delaying  them  in  the  collection  of  their  debts. 

§  238. — The  attachment  authorized  by  the  last  section  may  be  granted  by  the 
court  in  which  the  action  is  brought,  or  by  a  judge  thereof,  or  by  the  probate  judge 
of  the  county;  but  before  such  action  shall  be  brought,  or  such  attachment  shall 
be  granted,  the  plaintiff,  his  agent,  or  attorney,  shall  make  an  oath,  in  writing, 
showing  the  nature  and  amoimt  of  the  plaintiffs  claim,  that  it  is  just,  when  the 
same  shall  become  due,  and  the  existence  of  some  one  of  the  grounds  for  attach- 
ment entmierated  in  the  preceding  section. 

§  239. — If  the  court  or  judge  refuse  to  grant  an  order  of  attachment,  the  action 
shall  be  dismissed,  but  without  prejudice  to  a  future  action;  and  in  all  such  actions 
application  for  an  attachment  must  be  made. 

§240. — The  order  of  the  court  or  judge  granting  the  attachment  shall  specify 
the  amount  for  which  it  is  allowed,  not  exceeding  a  simi  sufficient  to  satisfy  the 
plaintiff's  claim  and  the  probable  costs  of  the  action. 

§  241. — ^The  order  of  attachment,  as  granted  by  the  court  or  judge,  shall  not  be 
issued  by  the  clerk  until  there  has  been  executed  in  his  office  such  undertaking  on 
the  part  of  the  plaintiff  as  is  directed  by  section  two  hundred. 

§  242. — ^The  plaintiff  in  such  action  shall  not  have  judgment  on  his  claim  before 
it  becomes  due,  and  the  proceedings  on  attachment  may  be  conducted  without 
delay. 

§  243. — The  proceedings  in  the  first  article  of  this  chapter  subsequent  to  section 
two  hundred,  shall,  so  far  as  they  are  applicable,  regulate  the  attachments  author- 
ized by  this  chapter. 

GARNISHMENT  IN  CERTAIN  CASES. 

§  244. — In  all  cases  where  an  execution  issued  upon  any  judgment  of  a  court  of 
record,  or  of  a  justice  of  the  peace,  shall  be  retm-ned  by  the  officer  in  whose  hands 
the  same  was  placed  for  service,  unsatisfied  for  want  of  sufficient  joroperty  whereof 
to  levy  and  collect  the  same,  and  the  judgment  creditor  in  such  execution,  his  agent 
or  attorney,  shall  file  an  affidavit  in  the  office  of  the  clerk  of  the  court,  or  justice 
of  the  peace,  from  which  said  execution  issued,  that  he  has  good  reason  to  and  does 
believe  that  any  person  or  corporation  (naming  them)  have  projjerty  of  and  are 
indebted  to  the  judgment  debtor,  the  said  clerk,  or  justice  of  the  peace,  shall  issue 
a  summons  as  in  other  cases,  requiring  such  person  or  corporation  to  appear  in 
coiu-t  and  answer  such  inteiTogatories  as  shall  be  jiropounded  tti  him,  it  or  them, 
touching  the  goods,  chattels,  rights,  and  credits  of  the  said  judgment  debtor  in  his, 
its  or  their,  possession  or  control. 

§  245.— The  siimmons  shall  be  made  returnable,  and  the  said  persons  or  corpora- 
tions shall  be  reqxiired  to  appear,  as  in  ordinary  cases  of  summons,  and  thereafter 
like  proceedings  shall  be  had  therein,  and  said  garnishees  shall  be  held  liable,  in 
all  respects,  as  in  cases  of  garnishees  before  ji^dgment. 

§  246. — The  simimons  shall  be  served  as  a  summons  in  an  original  action  is 
served;  the  said  persons  or  corporations  so  summoned  shall  be  liable  to  the  judg- 
ment creditor  in  said  execution  for  all  property,  money,  or  credits  in  his,  its  or  their, 
hands,  or  due  from  him,  it  or  them,  to  the  judgment  debtor  in  said  execution,  at 
the  time  of,  and  which  may  come  into  his,  its  or  their,  hands  or  control  after  the 
service  of,  said  summons. 


612  NEVADA. 

§  247. — Xo  proceedings  against  such  garnishee  or  garnishees  shall  be  quashed, 
or  such  garnisliee  or  garnishees  discharged,  by  reason  of  any  informality  or  irregu- 
laritj',  merely,  of  the  affidavit  or  summons  provided  for  in  this  article. 

§  24S. — In  cases  where  the  garnishee,  in  answering  such  interrogatories,  shall 
disclose  that  he  has  property  in  his  possession,  or  under  his  control,  belonging  to 
the  defendant  or  defendants  in  execution,  the  court  shall  order  the  same  to  be  taken 
and  sold  by  the  officers  upon  execution,  as  in  other  cases. 

§  249. — In  cases  where  the  garnishee,  in  answering  such  interrogatories,  shall  dis- 
close that  he  is  indebted  to  the  defendant  in  execution,  the  com-t  shall  order  the 
garnishee  to  pay  over  the  amount  found  to  be  due  from  the  said  garnishee  to  the  de- 
fendant in  execution,  which  amount  shall  be  collected  by  execution,  as  in  other 
cases,  as  near  as  may  be,  and  such  amount,  when  paid  or  collected,  shall  be  credited 
on  the  original  judgment,  and  the  garnishee  shall  be  credited  for  the  amount  so 
paid  or  collected. 

Before  justices  of  the  peace — Sees.  925-950. 

In  probate  coiu-ts— Page  207,  sec.  16;  against  estates,  p.  239,  sec.  27;  p.  245. 
sees.  272.  273. 

To  enforce  mechanics'  liens — Page  345,  sec.  9. 

Exemptions— Sees.  521,  530,  531,  531  a;  city  property,  p.  101,  sec.  100;  ceme- 
teries, p.  141,  sec.  53;  fire  engines,  p.  285,  sec.  4;  homestead,  p.  295,  sec.  1;  money 
from  sale  of,  p.  297,  sec.  16;  public  libraries,  p.  333,  sec.  11. 


NEVADA. 

[General  Statutes,  1885.] 


CHAPTER  IV. 

ATTACHMENT. 


§  3145  (Sec.  123). — The  plaintiff,  at  the  time  of  issuing  the  summons,  or  at  any 
time  afterward,  may  have  the  property  of  the  defendant  attached,  as  security  for 
the  satisfaction  of  any  judgment  that  may  be  recovered,  unless  the  defendant  give 
security  to  pay  such  judgment,  as  hereinafter  provided  in  the  following  cases: 
First — In  an  action  upon  a  contract  for  the  direct  payment  of  money,  made,  or  by 
the  terms  thereof,  payable  in  this  state,  which  is  not  secured  by  mortgage,  lien,  or 
pledge  upon  real  or  personal  property  situated  or  being  in  this  state,  if  so  secured, 
when  such  security  has  been  rendered  nugatory  by  the  act  of  the  defendant. 
Second — In  an  action  upon  a  contract  against  a  defendant  not  residing  in  this  state. 

§  3146  (Sec.  124). — The  clerk  of  the  court  shall  issue  the  -m-it  of  attachment  upon 
receiving  an  affidavit  by  or  on  behalf  of  the  plaintiff,  which  shall  be  filed,  show- 
ing: First — That  the  defendant  is  indebted  to  the  plaintiff  (siiecifj-ing  the  amount 
of  such  indebtedness  over  and  above  all  legal  set-offs  or  counter-claims^  upon  a 
contract  for  the  direct  payment  of  money,  and  that  such  contract  was  made,  or  is, 
by  the  terms  thereof,  payable  in  this  state,  and  that  the  pajTnent  of  the  same  has 
not  been  secured  by  any  mortgage,  lien,  or  pledge  upon  real  or  personal  property 
situate  or  being  in  this  state,  or,  if  so  secured,  that  said  security  has  been  rendered 
nugatory  by  the  act  of  the  defendant;  or,  Second — That  the  defendant  is  indebted 
to  the  plaintiff  (specifying  the  amount  of  such  indebtedness  as  near  as  maybe  over 
and  above  all  legal  set-offs  or  counter-claims),  and  that  the  defendant  is  a  non- 
resident of  the  state.  Third — That  the  sum  for  which  the  attachment  is  asked  is 
an  actual  bona  fide  existing  debt,  due  and  owing  from  the  defendant  to  the  plaint- 
iff, and  that  the  attachment  is  not  sought  and  the  action  is  not  prosecuted  to  hin- 
der, delay,  or  defraud  any  creditor  of  the  defendant. 

§  3147  (Sec.  125). — Before  issuing  the  writ  the  clerk  shall  require  a  written  un- 
dertaking on  the  part  of  the  jjlaintiff,  in  a  sum  not  less  than  two  hundred  dollars. 


NEVADA.  613 

not  exceeding  the  amount  claimed  by  the  plaintiff,  in  gold  coin  of  the  United 
States,  with  sufficient  sureties,  to  the  effect  that  if  the  defendant  recover  judgment 
the  plaintiff  will  pay,  in  gold  coin  of  the  United  States,  all  costs  that  may  be 
awarded  to  the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the 
attachment,  not  exceeding  the  sum  specified  in  the  undertaking. 

§  3148  (Sec.  126). — The  writ  shall  be  directed  to  the  sheriff  of  any  county  in 
which  property  of  such  defendant  may  be,  and  require  him  to  attach  and  safely 
keep  all  the  property  of  such  defendant  within  his  county  not  exempt  from  execu- 
tion, or  so  much  thereof  as  may  be  sufficient  to  satisfy  the  plaintifE's  demand,  the 
amount  of  which  shall  be  stated  in  conformity  with  the  complaint,  unless  the  de- 
fendant give  him  security  by  the  undertaking  of  at  least  two  sufficient  sureties,  in 
an  amount  sufficient  to  satisfy  such  demand,  besides  costs,  in  the  money  or  cur- 
rency of  the  contract,  in  which  case  to  take  such  undertaking.  Several  verits  may 
be  issued  at  the  same  time  to  the  sheriffs  of  different  counties. 

§  3149  (Sec.  127). — The  rights  or  shares  which  the  defendant  may  have  in  the 
stock  of  any  corporation  or  company,  together  with  the  interest  and  profits  therein, 
and  all  debts  due  such  defendant,  and  all  other  property  in  this  state  of  such  de- 
fendant not  exempt  from  execution,  may  be  attached,  and,  if  judgment  be  re- 
covered, be  sold  to  satisfy  the  judgment  and  execution. 

§  3150  (Sec.  128). — The  sheriff  to  whom  the  writ  is  directed  and  delivered  shall 
execute  the  same  ■ivithout  delay,  and  if  the  undertaking  mentioned  in  section  one 
hundred  and  twenty-six  be  not  given,  as  follows:  First — Real  property  shall  be 
attached  by  leavirig  a  copj'  of  the  writ  with  the  occupant  thereof;  or.  if  there  be 
no  occupant,  by  posting  a  copy  in  a  conspicuous  place  thereon,  and  filing  a  copy, 
together  with  a  description  of  the  property  attached,  with  the  recorder  of  the 
county.  Second — Personal  property  capable  of  manual  delivery  shall  be  attached 
by  taking  it  into  custody.  Third — Stock  or  shares,  or  interest  in  stock  or  shares, 
of  any  corporation  or  company  shall  be  attached  by  leaving  with  the  president,  or 
other  head  of  the  same,  or  the  secretary,  cashier,  or  managing  agent  thereof,  a 
copy  of  the  -nTit,  and  a  notice  stating  the  stock  or  interest  of  the  defendant  is  at- 
tached in  pursuance  of  such  writ.  Foy.rth — Debts  and  credits,  and  other  personal 
property,  not  capable  of  manual  delivery,  shall  be  attached  by  leaving  with  the 
person  owing  such  debts,  or  having  in  his  possession,  or  under  his  control,  such 
cretUts  or  other  personal  property,  a  copy  of  thp  writ,  and  a  notice  that  the  debts 
owing  by  him  to  the  defendant,  or  the  credits  and  other  personal  proi^erty  in  his 
possession  or  under  his  control,  belonging  to  the  defendant,  are  attached  in  pursu- 
ance of  such  writ. 

§  3151  (Sec.  129). — Upon  receiving  information  in  writing,  from  the  plaintiff  or 
his  attorney,  that  any  person  has  in  his  possession,  or  under  his  control,  any  cred- 
its or  other  personal  property  belonging  to  the  defendant,  or  is  owing  any  debt  to 
defendant,  the  sheriff  shall  serve  upon  such  person  a  copy  of  the  writ,  and  a  notice 
that  such  credits  or  other  property  or  debts,  as  the  case  may  be,  are  attached  in 
pursuance  of  such  writ. 

§  3152  (Sec.  130). — All  persons  having  in  their  possession,  or  under  their  con- 
trol, any  credits  or  other  personal  property  belonging  to  the  defendant,  or  owing 
any  debts  to  the  defendant  at  the  time  of  service  upon  them  of  a  copy  of  the  writ 
and  notice,  as  provided  in  the  last  two  sections,  shall  be,  unless  such  jiroperty  is 
delivered  up  or  transferred,  or  such  debts  be  paid  to  the  sheriff,  liable  to  the  plaint- 
iff for  the  amount  of  such  credits,  property,  or  debts,  irntU  the  attachment  be  dis- 
charged or  any  judgment  recovered  by  him  be  satisfied. 

§  3153  (Sec.  131).— Any  person  owing  debts  to  the  defendant,  or  having  in  his 
possession  or  under  his  control  any  credits  or  other  personal  property  belonging  to 
the  defendant,  may  be  required  to  attend  before  the  court,  or  judge,  or  a  referee 
appointed  by  the  court  or  judge,  and  be  examined  on  oath  respecting  the  same. 
The  defendant  may  also  be  required  to  attend  for  the  pm-pose  of  giving  informa- 
tion respecting  his  proi^erty,  and  may  be  examined  on  oath.  The  court  or  judge 
may,  after  such  examination,  order  personal  property  capable  of  manual  delivery 
to  he  delivered  to  the  sheriff  on  such  terms  as  may  be  just,  having  reference  to  any 
liens  thereon  or  claims  against  the  same,  and  a  memorandum  to  be  given  of  all 
other  personal  property,  containing  the  amount  and  description  thereof. 

§  3154  (Sec.  132).— The  sheriff  shall  make  a  full  inventory  of  the  property  at- 
tached, and  return  the  same  with  the  writ.  To  enable  him  to  make  such  returns 
as  to  debts  and  credits  attached,  he  shall  request  at  the  time  of  service  the  party 
owin,'.,'-  the  debt,  or  having  the  credit,  to  give  him  a  memorandum  stating  the  amount 
an<l  description  of  each;  and  if  such  memorandum  be  refused,  he  shall  return  the 
fact  of  refusal  with  the  writ.     The  party  refusing  to  give  the  memorandum  may  be 


614  NEVADA. 

required  to  pay  the  costs  of  any  proceeding  taken  for  the  purpose  of  obtaining  in- 
formation respecting  the  amount  and  description  of  such  debt  or  credit. 

§  3155  (Sec.  133). — If  any  of  the  property  attached  be  perishable,  the  sheriff 
shall  sell  the  same  in  the  manner  in  which  such  property  is  sold  on  execution,  llie 
proceeds  and  other  property  attached  by  him  shall  be  retained  by  him  to  answer 
any  judgment  that  may  be  recovered  in  the  action,  unless  sooner  subject  to  execu- 
tion upon  another  judgment  recovered  previous  to  the  issuing  of  the  attachment. 
Debts  and  credits  attached  may  be  collected  by  him,  if  the  same  can  be  done  with- 
out suit.     The  sheriff's  receijit  shall  be  a  sufficient  discharge  for  the  amount  paid. 

§  3156  (Sec.  134). — If  any  personal  property  attached  be  claimed  by  a  third 
person  as  his  property,  the  sheriff  may  summon  a  jury  of  sis  men  to  try  the  valid- 
ity of  such  claim;  and  such  proceedings  shall  be  had  thereon,  with  the  like  effect, 
as  in  case  of  a  claim  after  levy  upon  execution. 

§  3157  (Sec.  135). — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall 
satisfy  the  same  out  of  the  property  attached  by  him  which  has  not  been  dehvered 
to  the  defendant  or  a  claimant,  as  hereinafter  provided,  or  subjected  to  execution 
on  another  judgment  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be 
sufficient  for  that  purpose:  First,  by  paying  to  the  plaintiff  the  proceeds  of  all 
sales  of  perishable  property  sold  by  him,  or  of  any  debts  or  credits  collected  by 
him,  or  so  much  as  shall  be  necessary  to  satisfy  the  judgment;  second,  if  any  bal- 
ance remain  due,  and  an  execution  shall  have  been  issued  on  the  judgment,  he  shall 
sell  under  the  execution  so  much  of  the  property,  real  or  personal,  as  may  be  nec- 
essary to  satisfy  the  balance,  if  enough  for  that  purpose  remain  in  his  hands.  No- 
tice of  the  sales  shall  be  given,  and  the  sales  conducted,  as  in  other  cases  of  sales 
on  execution. 

§  3158  (Sec.  136). — If,  after  selling  all  the  property  attached  by  him  remaining 
in  his  hands,  and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts 
or  credits  collected  by  him,  deducting  the  fees,  to  the  payment  of  the  judgment, 
any  balance  shall  remain  due,  the  sheriff  shall  proceed  to  collect  such  balance  as 
upon  an  execution  in  other  cases.  Whenever  the  judgment  shall  have  been  paid, 
the  sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the  defendant  the  at- 
tached property  remaining  in  his  hands,  and  any  proceeds  of  the  property  attached 
unapplied  on  the  judgment. 

§  3159  (Sec.  137). ^If  the  execution  be  returned  unsatisfied,  in  whole  or  in  part, 
the  plaintiff  may  prosecute  any  undertaking  given  pursuant  to  section  one  hundred 
and  twenty-six,  or  section  one  hundred  and  forty,  or  he  may  proceed  as  in  other 
cases  upon  the  return  of  an  execution. 

§  3160  (Sec.  138). — If  the  defendant  recover  judgment  against  the  plaintiff,  any 
undertaking  received  in  the  action,  all  the  proceeds  of  sales  and  money  collected 
by  the  sheriff,  and  all  the  property  attached  remaining  in  the  sheriff's  hands,  shall 
be  delivered  to  the  defendant  or  his  agent;  the  order  of  attachment  shall  be  dis- 
charged and  the  jDroperty  released  therefrom. 

§  3161  (Sec.  139). — Whenever  the  defendant  shall  have  appeared  in  the  action, 
he  may  apply,  upon  reasonable  notice  to  the  plaintiff,  to  the  court  in  which  the  ac- 
tion is  pending,  or  to  the  judge  thereof,  for  an  order  to  discharge  the  attachment, 
wholly  or  in  part,  upon  the  execution  and  filing  of  the  undertaking  mentioned  in 
the  next  section.  Such  order  may  be  granted  directing  the  release  from  the  opera- 
tion of  the  attachment,  upon  the  filing  of  such  undertaking  and  the  justification 
of  the  sm-eties  thereon,  if  required  by  the  plaintiff,  of  all  or  any  part  of  the  prop- 
erty, money,  debts,  or  credits  attached,  as  the  case  may  be.  AH  the  proceeds  of 
sales  and  moneys  collected  by  the  sheriff,  and  all  the  property  attached  remaining 
in  his  hands,  so  released,  shall  be  delivered  or  paid  to  the  defendant  upon  the  filing 
of  such  undertaking  and  making  such  justification,  if  required  by  the  plaintiff. 

§  3162  (Sec.  140).— On  granting  such  order,  the  court  or  the  judge  shall  require 
an  undertaking  oh  behalf  of  the  defendant,  with  at  least  two  sureties,  residents 
and  freeholders,  or  householders,  in  the  county,  which  shall  be  filed,  to  the  effect,  in 
case  the  value  of  the  property  or  the  amount  of  money,  debts,  or  credits  sought  to 
be  released  shall  equal  or  exceed  the  amount  claimed  by  the  plaintiff  in  the  com- 
plaint, that  the  defendant  wiU  pay  to  the  plaintiff  the  amount  of  the  judgment 
which  may  be  recovered  in  favor  of  the  plaintiff  in  the  action,  not  exceeding  the 
sum  specified  in  the  undertaking,  which  shall  be  at  least  double  the  amount  so 
claimed  by  the  plaintiff,  and  in  the  money  or  currency  of  the  contract;  or  to  the 
effect,  in  case  the  value  of  the  property  or  the  amount  of  money,  debts,  or  credits 
sought  to  be  released  shall  be  less  than  the  amount  so  claimed  by  the  plaintifiF,  that 
the  defendant  will  pay  the  amount  of  such  judgment,  to  the  extent  of  the  value  of 


NEW   HAMPSHIRE.  615 

the  property,  or  amount  of  money,  debts,  or  credits  sought  to  be  released,  not  ex- 
ceedinf?  the  sum  specified  in  the  undertaking',  which  shall  be  at  least  double  the 
amount  of  such  property,  money,  debts,  or  credits,  and  in  the  money  or  currency 
of  the  contract.  The  value  of  the  property  sought  to  be  released,  if  disputed,  shall 
be  determined,  in  the  money  or  cuiTency  of  the  contract,  by  the  court  or  judge 
thereof,  upon  proof  or  by  a  sworn  appraiser,  or  sworn  appraisers  not  exceeding 
three,  to  be  appointed  by  the  court  or  judge  for  that  purpose.  Before  filing  the 
undertaking,  the  defendant  shall  serve  a  copy  thereof  upon  the  plaintiff,  and  if  the 
l^laintiff  require  a  justification  by  the  sureties,  he  shall  give  notice  thereof  to  the 
defendant  within  two  days;  or  at  the  time  of  giving  notice  of  motion  for  an  order 
to  discharge  the  attachment,  the  defendant  may  in  his  notice  name  the  sureties, 
and  if  the  plaintiff  require  them  to  justify,  he  shall  give  notice  thereof  at  the  hear- 
ing of  the  motion.  If  required,  the  sureties  shall  justify  before  the  court  in  which 
the  suit  is  pending,  or  the  judge  thereof,  after  reasonable  notice. 

§  3163  (Sec.  141).— The  defendant  may  also,  any  time  before  the  time  of  an- 
swering expires,  apply  upon  motion,  upon  reasonable  notice  to  the  plaintiff,  to  the 
court  in  which  the  action  is  brought,  or  to  the  judge  thereof,  for  the  discharge  of 
the  attachment,  on  the  ground  that  the  writ  was  imjjroperly  issued. 

§  31G4  (Seo.  142). — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  de- 
fendant, but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits  or  other 
evidence,  in  addition  to  those  on  which  the  writ  of  attachment  was  issued. 

§  31  Go  (Sec.  143). — If  upon  such  application  it  shall  satisfactorily  appear  that 
the  writ  of  attachment  was  improj)erly  issued,  it  shall  be  discharged. 

§  3166  (Sec.  144). — The  sheriff  shall  return  the  writ  of  attachment  with  the 
summons,  if  issued  at  the  same  time;  otherwise  within  twenty  days  after  its  re- 
ceipt, with  a  certificate  of  his  proceeding  indorsed  thereon  or  attached  thereto. 


Before  justices  of  the  peace — Sec.  3549. 
Fees  and  salaries  of  officers  subject  to— Sec.  2422. 
Writ  of,  may  issue  on  any  day — Sec.  2469. 
Mortgaged  personal  property  subject  to — Sec.  2635. 
Administrator  may  issue  against— Sec.  2897. 
Warrant  of,  for  contempt — Sec.  3486. 
Property  may  be  sold  under  writ  of — Sec.  3617. 
Disobedience  to  writ  of  habeas  corpus — Sees.  3679,  3687^ 
Wages  of  labor,  preferred  claims — Sees.  3829-3831. 
Lotteries,  property  in,  to  issue  against — Sec.  4864. 


NEW  HAMPSHIRE. 

[Geneual  Laws  1878,  and  Subsequent  Statutes.] 


CHAPTER   224 

ATTACHMENTS. 


§  1. — All  property,  real  and  personal,  which  is  liable  to  be  taken  in  execu- 
tion, may  be  attached  and  holden  as  security  for  the  judgment  the  i^laintiff  may 
recover. 

§  2. — The  following  goods  and  property  are  exempted  from  attachment  and 
execution: 

1.  The  wearing  apparel  necessary  for  the  use  of  the  debtor  and  his  family. 

2.  Comfortable  beds,  bedsteads,  and  bedding  necessary  for  the  debtor,  his  wife, 
and  children. 

3.  Household  furniture  to  the  value  of  one  hundred  dollars. 

4.  One  cooking-stove  and  the  necessary  furniture  belonging  to  the  same. 


616  NEW   HAMPSHIRE. 

5.  One  seAving-mactine,  kept  for  use  by  the  debtor  or  his  family. 
C.  Provisions  and  fuel  to  the  value  of  fifty  dollars. 

7.  The  uniform,  arms,  and  equipments  of  every  oflScer  and  private  in  the 
militia. 

8.  The  Bibles,  school-books,  and  library  of  any  debtor  used  by  him  or  his  fam- 
ily, to  the  value  of  two  hundred  dollai-s. 

9.  Tools  of  his  occupation  to  the  value  of  one  hundred  dollars. 

10.  One  hog  and  one  pig,  and  the  pork  of  the  same  when  slaughtered. 

11.  Six  sheep  and  the  fleeces  of  the  same. 

12.  One  cow;  a  yoke  of  oxen  or  a  horse,  when  required  for  farming  or  teaming 
purjjoses,  or  other  actual  use;  and  hay  not  exceeding  four  tons. 

13.  The  debtor"^  interest  in  one  pew  in  any  meeting-house  in  which  he  or  his 
family  usually  worship. 

14.  The  debtor's  interest  in  one  lot  or  right  of  burial  in  any  cemetery. 

§  3. — Eeal  estate  may  be  attached  on  any  writ  of  mesne  process,  by  the  officer 
leaving  an  attested  copy  thereof  and  of  his  return  of  such  attachment  thereon  at 
the  dwelling-house  of  the  town  clerk  of  the  town  in  which  .such  real  estate  is  situ- 
ate, or,  if  there  is  no  town  clerk,  with  the  clerk  of  the  supreme  court  for  the 
county. 

§  4. — The  officer's  return  is  snfiicient  evidence  that  such  copy  has  been  so  left, 
and  of  the  time  thereof;  but  the  town  clerk  or  clerk  of  the  com-t  shall  certify 
thereon  the  time  when  such  copy  was  received,  and  keep  the  same  on  file. 

§  5. — The  town  clerk  shall  keep  a  general  index  of  all  attachments  made  by 
leaving  a  copy  of  the  writ  of  attachment  at  his  dwelling-house,  in  which  he  shall 
enter,  at  the  time  of  recei\'ing  the  copy  of  the  writ  on  which  the  attachment  is 
made,  the  day  of  receiving  the  same,  the  court  to  which  the  writ  is  returnable,  and 
the  names  of  the  plaintiff  and  defendant  in  the  suit,  with  the  names  of  defendants 
alphabetically  arranged;  which  index  shall  at  all  times  be  open  to  public  inspection. 

§  6. — The  officer  making  such  attachment  shall,  at  the  time  of  making  the  same, 
pay  to  the  town  clerk  the  sum  of  twenty  cents,  which  shall  be  in  full  for  his  serv- 
ices in  receiving  and  filing  the  copy,  certifying  the  time  of  receiving  the  same,  and 
entering  the  attachment  ujson  said  index. 

§  7. — By  an  attachment  of  real  estate  all  the  debtor's  interest  therein  is  holden 
to  satisfy  the  judgment,  though  such  interest  be  a  right  of  redeeming  the  same 
upon  a  mortgage,  or  levy,  or  sale  on  execution,  or  for  taxes,  or  a  right  to  receive  a 
conveyance  thereof  by  any  contract. 

§  8. — Any  creditor  attaching  his  debtor's  interest  in  real  estate,  whether  such 
interest  be  a  right  of  redeeming  the  same  upon  mortgage,  or  levy,  or  sale  on  execu- 
tion, or  for  taxes,  or  a  right  to  receive  a  conveyance  by  virtue  of  aiiy  contract,  may, 
while  such  right  exists,  as  well  before  as  after  sale  thereof  on  his  execution,  pay  or 
tender  to  the  person  entitled  to  the  redemjition  or  purchase-money  the  siun  due  ' 
him;  and  upon  such  paj'ment  or  tender  the  interest  in  such  real  estate,  under  such 
mortgage,  le\y,  or  sale,  and  the  interest  of  the  contractor  in  the  real  estate  liy  him 
contracted  to  be  conveyed,  shall,  as  against  such  attachment  and  the  rights  ac- 
quired under  it,  cease. 

§  9. — Such  creditor,  or  the  officer  serving  the  writ,  may  demand  of  the  person 
entitled  to  the  redemption  or  purchase-money  an  account  under  oath  of  the  amount 
due  him;  and  if  such  account  is  not  rendered  within  fifteen  days  thereafter,  or  a 
false  account  is  rendered,  his  interest  in  such  real  estate  shall,  as  against  such  at- 
tachment and  the  rights  accpiired  under  it,  cease.  But  anj'  person  wlio  fails  to 
render  an  account  or  a  true  account  as  herein  required,  may  be  relieved  by  a  bill 
in  equity,  brought  by  him  or  any  party  in  interest,  whenever  it  shall  appear  that 
such  failure  was  caused  by  fraud,  accident,  mistake,  or  misfortune,  and  that  such 
relief  would  be  just  and  equitable.    [Stats.  1883,  p.  19;  approved  August  7th,  1883.] 

§  10. — If,  after  payment  of  the  redemption  or  purchase-money,  such  attachment 
is  dissolved  or  the  levy  under  the  same  is  defeated,  the  cretUtor  shall  be  entitled  to 
receive  from  the  jterson  to  whom  the  i^ajTuent  was  made  a  conveyance  of  his  right 
to  such  real  estate. 

§  11. — If  such  person,  being  requested  to  make  such  conveyance,  and,  having 
his  reasonable  charges  therefor  paid  or  tendered  to  him,  unreasonably  neglects  or 
refuses  to  make  the  same,  such  creditor  may  maintain  an  action  of  assumpsit 
against  him  for  the  money  paid  as  aforesaid,  with  interest.  The  debtor  in  such 
case  shall  be  notified  in  writing  of  .such  conveyance,  neglect,  or  refusal,  and,  after 
such  notice,  shall  have  the  same  time  for  redeeming  such  real  estate  that  he  had  at 
the  time  of  attachment. 


I 


NEW    IIAMPSniRE.  617 

§  12. — No  attachment  of  any  interest  in  real  estate  shall  be  defeated  by  any 
change  in  the  nature  of  the  debtoi-'s  light  thereto,  as  by  redemption  of  anj'  mort- 
gage cr  other  incumbrance,  or  the  execution  to  him  of  any  conveyance  pursuant  to 
a  contract;  but  the  whole  interest  of  the  debtor,  upon  such  change,  shall  be  holden 
by  the  attachment. 

§  13. — The  share  or  interest  of  any  person  in  any  corporation  may  be  attached 
by  the  officer,  by  Icaying  an  attested  cojjy  of  the  vnit  and  of  his  return  thereon 
with  the  clerk,  treasurer,  cashier,  agent,  or  ];erson  having  the  care  of  the  ]n-oijerty 
of  such  corporation,  or  at  his  abode;  and  the  dividends  becoming  due  afterward 
shall  be  holden  1  ly  such  attachment. 

§  14. — Pews  or  seats  in  meeting-houses  or  places  of  public  worship  shall  be 
deemed  personal  property,  and  may  be  attached,  by  leaving  an  attested  copy  of 
the  -i^Tit  and  of  the  officer's  return  thereon  with  the  town  clerk  of  the  town  in 
which  such  meeting-house  is. 

§  15. — The  franchise  of  any  corporation  authorized  to  receive  tolls,  so  far  as  re- 
lates to  the  right  to  receive  tolls,  with  all  the  privileges  and  immunities  belonging 
thereto,  may  be  attached  by  leaving  an  attested  copy  of  the  writ  and  of  the  offi- 
cer's retmn  thereon  with  the  clerk,  treasurer,  or  a  director  of  such  corijoration. 

§  16. — The  officer  attaching  grain  unthreshed,  hay,  potatoes,  leaf  tobacco,  lum- 
ber, bark,  wood,  or  other  fuel,  bricks,  stone,  lime,  gypsum,  ore,  manufacturing  or 
other  machinery,  or  hides  in  the  process  of  tanning,  or  any  building  situate  on  land 
rot  belonging  to  the  owner  of  the  building,  may  leave  an  attested  copy  of  the  ■w'rit 
and  of  his  return  of  such  attachment  thereon  as  in  the  attachment  of  real  estate; 
and  in  such  case  the  attachment  shall  not  be  dissolved  or  defeated  by  any  neglect 
of  the  officer  to  retain  actual  possession  of  the  property. 

§  17. — Any  personal  property  not  exempt  from  attachment,  subject  to  any 
mortgage,  pledge,  or  lien,  may  be  attached  as  the  property  of  the  mortgagor, 
pledgor,  or  general  owner,  the  attaching  creditor  or  officer  paying  or  tendering  to 
the  mortgagee,  pledgee,  or  holder  the  amount  for  which  said  ijroperty  is  holden,  as 
ascertained  in  the  mode  provided  in  the  following  section. 

§  18. — Such  creditor  or  officer  may  demand  of  the  mortgagee,  pledgee,  or  holder 
an  account,  on  oath,  of  the  amount  due  upon  the  debt  or  demand  secured  by  such 
mortgage,  pledge,  or  lien,  and  the  officer  may  retain  such  property  in  his  custody 
until  the  same  is  given,  without  tender  or  payment;  and  if  such  account  is  not 
■given  within  fifteen  days  after  such  demand,  or  if  a  false  account  is  given,  such 
property  may  be  holden  discharged  from  such  mortgage,  pledge,  or  lien.  But  any 
person  who  fails  to  render  an  account  or  a  true  account  as  herein  required,  may  be 
relieved  by  a  bill  in  equity,  brought  by  him  or  any  party  in  interest,  whenever  it 
shall  appear  that  such  failure  was  caused  by  fraud,  accident,  mistake,  or  misfor- 
tune, and  that  such  relief  would  be  just  and  equitable.  [Stats.  1883,  p.  19;  ap- 
proved August  7th,  1883.] 

3  19. — Personal  property  attached  shall  be  sold  by  the  officer  before  judgment, 
if  the  parties  consent  thereto  in  writing;  and  such  sale  shall  be  made  in  the  same 
manner  as  sales  of  jjroxjerty  taken  on  execution,  unless  a  diiierent  mode  is  agi-eed 
oii  by  the  parties. 

§  20. — When  living  animals,  or  goods  liable  to  perish  or  waste,  or  to  be  greatly 
reduced  in  value  by  keeping,  or  which  cannot  be  kept  without  great  exjiense,  are 
attached,  and  the  parties  do  not  consent  to  a  sale,  the  officer,  on  application  of 
either  of  the  parties,  while  the  attachment  continues,  and  before  judgment  on 
which  the  plaintiff  can  take  execution,  may  cause  the  same  to  be  examined  in  the 
manner  following. 

§  21. — Three  disinterested  persons  conversant  with  the  nature  and  value  of  such 
property  shall  be  appointed,  one  by  the  officer,  one  by  the  creditor,  and  one  by  the 
debtor.  The  officer  shall  appoint  an  examiner  for  the  creditor  or  debtor,  in  any 
case  where  he  might  appoint  an  ajspraiser  for  the  debtor  upon  the  levy  of  an  exe- 
cution on  real  estate. 

§  22. — The  persons  so  appointed,  being  .sworn  to  the  faithful  discharge  of  their 
duties,  shall  examine  the  property,  and  decide  what  part  of  it  is  such  as  is  described 
in  section  twenty,  and  certify  the  same  to  the  officer,  and  he  shall  thereupon  ad- 
vertise and  sell  the  property  so  certified,  in  the  same  manner  as  if  the  parties  con- 
sented thereto. 

§  23. — If  the  debtor,  before  such  notice  of  sale,  requests  any  personal  property 
attached  to  be  restored  to  him,  and  the  officer  shall  not  agree  with  him  as  to  the 


618  NEW   HAMPSHIRE. 

value  thereof,  the  officer  shall  cause  three  disinterested  persons  to  be  appointed  and 
sworn  iu  the  manner  provided  in  the  two  preceding  sections. 

§  24. — The  officer  shall  cause  a  schedule  of  such  property  'to  be  prepared,  and 
the  persons  so  appointed  shall  appraise  the  same  at  its  cash  value  at  that  time,  and 
make  a  certificate  of  their  doings  on  such  schedule. 

§  25. — The  property  so  appraised,  or  the  value  of  which  has  been  agreed  on  by 
the  officer  and  debtor,  shall  be  restored  to  the  debtor,  upon  his  giving  bond  to  the 
sheriff,  if  the  attachment  is  made  by  him  or  his  deputy,  otherttdse  to  the  coroner 
or  constable  making  the  same,  in  sufficient  penalty,  with  sufficient  sureties,  condi- 
tioned to  pay  the  appraised  or  agreed  value  thereof,  or  so  much  as  may  be  neces- 
sary toward  the  satisfaction  of  any  executions  for  the  payment  of  which  the 
proi^erty  or  its  proceeds  are  holden. 

§  26. — Property  attached  shall  be  deemed  to  remain  in  the  custody  of  the  officer, 
so  far  as  to  be  liable  to  attachment  in  the  same  manner  it  would  have  been  if  it 
had  remained  in  his  hands  specifically,  notwithstanding  the  same  may  have  been 
sold,  or  restored  to  the  debtor,  or  taken  from  the  officer  by  a  writ  of  replevin. 

§  27. — If  the  property  is  sold  or  restored  to  the  debtor  as  aforesaid  before  the 
return  day  of  the  writ,  the  officer  shall  make  return  thereon  of  his  doings  relating 
thereto;  and  if  the  same  is  sold  or  restored  after  the  return  day,  he  shall  make  re- 
turn thereof  to  the  court  in  which  the  writ  is  pending  on  which  the  first  attachment 
was  made;  and  the  same  shall  be  filed  with  said  writ. 

§28. — The  bond  taken  by  the  officer,  upon  the  restoration  of  the  property  as 
aforesaid,  shall  be  returned  to  said  court,  and  filed  with  the  writ  on  which  the  first 
attachment  was  made,  as  a  part  of  the  record  in  said  case. 

§  29. — Every  bond  given  by  the  debtor,  on  the  restoration  of  the  property,  and 
every  replevin  bond  given  in  case  of  property  attached,  shall  be  deemed  to  be  given 
for  the  benefit  of  all  persons  who  have  attached  or  may  attach  the  same,  to  the  full 
value  of  the  jjroperty. 

§  30. — If  such  bond  is  forfeited,  any  attaching  creditor  or  his  representative 
may  bring  a  writ  of  sare/acias  thereon  within  two  years  after  the  cause  of  such 
action  accrues,  and  not  afterward ;  and  in  such  action  two  or  more  creditors  may 
join,  and  separate  executions  shall  be  awarded  to  each  for  the  amounts  due  to  them 
respectively. 

§  31. — Any  party  interested  may  maintain  an  action  of  debt  on  such  bond  in  the 
name  of  the  officer  to  whom  the  same  is  payable  within  the  period  above  limited; 
the  name  of  such  party  shall  be  indorsed  on  the  writ,  with  a  statement  of  his  in- 
terest, and  any  other  party  may  cause  his  name  to  be  so  indorsed  at  any  time,  by 
leave  of  court. 

§  32. — The  persons  whose  names  are  so  indorsed  shall  be  deemed  the  plaintiffs 
for  every  purpose,  and  executions  shall  issue  in  favor  of  each  for  the  amounts  due 
them  respectively,  and  against  them  for  costs,  if  judgment  should  be  rendered  for 
the  defendants  in  such  action. 

§  33. — When  a  judgment  is  rendered  for  the  defendant,  upon  which  execution 
may  issue,  or  when  the  action  is  compromised  or  dismissed,  the  attachment  made 
in  such  action  is  dissolved  thereby. 

§  3-1. — Attachments  are  dissolved  by  the  assent  of  the  plaintiff  to  a  valid  assign- 
ment by  the  defendant  of  his  property  for  the  benefit  of  his  creilitors,  or  by  the 
death  of  the  defendant,  in  case  his  estate  is  decreed  to  be  administered  as  an  in- 
Bolvent  estate,  but  not  otherwise,  if  the  cause  of  action  survives. 

§  35. — If  the  attachments  on  any  property  are  dissolved,  and  the  same  has  been 
sold,  the  money  arising  from  the  sale  thereof,  deducting  the  charges  and  expenses 
of  sale,  shall  be  restored  to  the  debtor  or  his  personal  representative,  upon  re- 
quest, or  if  the  property  has  been  restored  to  the  debtor  on  his  bond,  the  said  bond 
shall  be  void. 

§  .36.— Property  attached  shall  be  holden  until  the  expiration  of  thirty  dajrs 
from  the  time  of  rendering  a  judgment  in  the  action  in  favor  of  the  plaintiff  on 
which  he  can  take  execution,  and  if  there  are  several  attachments  the  property 
shall  be  holden  to  the  creditors  in  the  order  in  which  their  attachments  were  made. 

§  37. — When  there  are  several  attachments  of  the  same  property,  in  different 
suits,  if  an  action  in  which  a  prior  attachment  was  made  shall  be  continued  in 
court,  the  plaintiff  in  any  suit  wherein  any  subsequent  attachment  was  ma.ie  may 
take  judgment  and  execution  at  any  time,  and  the  lien  of  such  subsequent  attach- 


\ 


NEW   HAMPSHIRE.  619 

ment  in  iti3  order  of  priority  shall  be  preserved  on  said  property  until  the  expira- 
tion of  thirty  days  from  the  rendition  of  jud.;jment  in  the  suit  wherein  the  prior 
attachment  was  made,  and  may  be  enforced  by  any  execution  issued  upon  said 
judgment  in  force  at  the  time  of  its  levy. 

§  38.  — The  proceeds  of  property  sold  on  any  writ,  and  the  amount  secured  by 
bond  when  property  attached  is  restored  to  the  debtor,  shall  be  holden  to  pay  the 
executions  issuing  in  the  actions  in  which  the  attachments  were  made,  in  tiie  order 
in  which  they  were  made,  if  demanded  by  the  ofHcer  to  whom  such  executions  are 
committed,  within  thirty  days  after  judgment  is  rendered. 

§  39. — If  judgment  for  the  plaintiff  is  rendered  by  direction  of  the  court  as  of  a 
previous  term,  the  clerk  shall  enter  of  record  the  day  on  which  the  order  of  court 
is  dated,  and  property  attached  shall  be  holden  until  the  expiration  of  thirty  days 
from  that  date. 

IN   EQUITY. 

§  34. — Whenever  any  party  in  interest  to  a  suit  is  dissatisfied  with  the  decision 
of  examiners  refusing  to  order  a  sale  of  property  attached  in  such  suit  under  the 
provisions  of  sections  twenty,  twenty-one,  and  twenty -two  of  chapter  two  hundred 
and  twenty-four,  such  party  may  make  application  to  any  judge  of  the  supreme 
court,  in  term-time  or  vacation,  for  an  order  of  sale  of  such  attached  property,  or 
any  part  thereof,  by  the  officer  attaching  or  holding  the  same,  and  such  judge 
may,  ujwn  reasonable  notice  to  the  adverse  party,  or  his  agent  or  attorney,  and 
proper  evidence,  order  the  sale  of  said  property,  or  any  part  thereof,  by  such  officer; 
and  thereupon  such  officer  shall  advertise  and  sell  such  property  embraced  in  such 
order,  in  the  same  manner  as  if  the  parties  consented  thereto. 

§  35. — Any  party,  defendant,  whose  interest  in  real  estate  is  attached  on  mesne 
process,  or  whose  rights,  credits,  or  other  thing  are  attached  by  the  trustee  i^rocess, 
may  petition  in  writing  to  a  justice  of  the  supreme  court,  in  term-time  or  vacation, 
to  have  such  attachments  released;  and,  upon  reasonable  notice  to  all  parties 
interested,  or  their  attorneys,  said  justice  may  order  such  petitioner  to  give  bond 
to  the  plaintiff,  with  sufficient  sureties,  conditioned  to  pay  the  judgment  which 
may  be  recovered  by  the  plaintiff,  with  his  costs  on  such  petition,  within  thirty 
days  after  such  judgment;  the  petition  and  proceedings  thereon  shall  be  filed  in 
the  office  of  the  clerk  of  the  siipreme  court  in  the  county  where  such  suit  is  brought, 
and  recorded  as  part  of  the  case,  and  the  clerk  shall,  upon  payment  or  tender  of 
his  fees,  give  the  petitioner  an  attested  copy  of  the  petition  and  proceedings,  with 
a  certificate,  imder  seal  of  the  covu-t,  attached  thereto,  that  such  bond  has  been  duly 
filed  in  his  office,  and  the  recording  of  such  copy  and  certificate  in  the  registry  of 
deeds  in  the  county  where  such  real  estate  or  interest  lies,  shall  vacate  and  dis- 
solve the  attachment  thereof;  and  the  delivery  of  a  like  copy  and  certificate  to  the 
party  summoned  as  such  trustee,  or  his  agent  or  attorney,  shall  vacate  and  dissolve 
such  attachment  made  under  and  by  virtue  of  such  trustee  process.  If,  on  such 
hearing,  the  said  justice  shall  find  the  said  real  estate,  rights,  credits,  or  other 
things  so  attached,  or  the  interest  of  the  defendant  therein,  to  be  of  less  value  than 
the  amount  ordered  in  the  writ  to  be  attached,  such  bond  shall  be  conditioned  to 
pay  the  value  of  such  interest  so  found,  and  costs  on  said  petition,  within  said 
time.     [Stats.  1879,  p.  370.] 


Liens  which  may  be  enforced  by  attachment — Pa^e  334,  sees.  9-19,  and  Stats. 
1879,  p.  370. 

Stock  of  railroad  corporations — Page  376,  sec.  6. 

Attachment  is  original  process — Page  512,  sec.  4. 

In  real  actions  and  ejectment — Page  512,  sec.  6. 

Writ  of,  from  justice,  to  run  to  other  county — Page  512,  sec.  13;  how  served, 
p.  515,  sec.  3;  on  non-resident,  p.  516,  sec.  5. 


620  NEW  JERSEY. 


NEW  JERSEY. 

[Revision  of  1877,  and  Subsequent  Statutes.] 


I.      ATTACHMENT — WHEN,   AND  AGAINST  WHOM  ISSUED. 

§  1. — That  if  any  creditor  shall  make  oath  or  affirmation  that  he  verily  beUevea 
that  his  debtor  absconds  from  his  creditors,  and  is  not,  to  his  knowledge  or  belief, 
resident  in  this  state  at  the  time,  then  it  shall  be  the  duty  of  the  clerk  of  the  su- 
preme court,  or  of  any  circuit  court  or  court  of  common  pleas,  to  issue  a  writ  of 
attachment,  to  be  directed  to  the  sheriff  or  coroner,  as  the  case  may  require,  com- 
manding- him  to  attach  the  rights  and  credits,  moneys  and  effects,  goods  and  chat- 
tels, lands  and  tenements  of  such  debtor,  wheresoever  they  may  be  found;  which 
oath  or  affirmation  shall,  prior  to  the  sealing  of  the  said  writ,  be  delivered  to  the 
said  clerk,  to  be  by  him  filed  in  his  office. 

§  2. — That  if  the  said  creditor  be  absent  or  reside  out  of  this  state,  then  his 
agent  or  attorney  may  make  oath  or  affirmation  to  the  above  effect,  and  deliver 
the  same  to  the  said  clerk  to  be  filed,  who  shall  thereupon  issue  such  writ  of  at- 
tachment. 

§  .3. — And  whereas,  debtors  who  reside  out  of  this  state  may  have  property 
sufficient  within  the  same  to  pay  their  debts,  or  some  part  thereof,  be  it  therefore 
enacted,  that  the  rights  and  credits,  moneys  and  effects,  goods  and  chattels,  lands 
and  tenements,  of  every  debtor  who  may  reside  out  of  this  state,  shall  be  liable  to 
be  attached,  taken,  proceeded  against,  sold,  assigned,  transferred,  and  conveyed 
for  the  pajTnent  of  his  debts,  in  the  like  manner,  as  nearly  as  may  be,  as  the  rights 
and  credits,  moneys  and  effects,  goods  and  chattels,  lands  and  tenements  of  other 
debtors  are  made  liable  by  this  act:  Provided,  that  instead  of  the  oath  or  affirma- 
tion hereinbefore  mentioned,  the  applicant  for  such  writ  of  attachment,  or  his 
agent,  if  said  applicant  be  absent,  shall,  before  the  sealing  thereof,  make  oath  or 
affirmation  (which  shall  be  filed  in  the  office  of  the  clerk  of  the  court  out  of  which 
the  same  shall  be  issued),  that  the  person  against  whose  estate  such  attachment  is 
to  be  issued  is  not,  to  his  knowledge  or  belief,  resident  at  that  time  in  this  state, 
and  that  he  owes  to  the  plaintiff  a  certain  sum  of  money,  specifying,  as  nearly  as 
he  can,  the  amount  of  the  debt  or  balance. 

§  4. — That  if  any  clerk  shall  seal  such  writ  of  attachment,  before  such  oath  or 
affirmation  shall  be  delivered  to  him,  he  shall  forfeit  and  pay  twenty  dollars  to  the 
party  injured,  to  be  recovered,  with  costs,  by  action  of  debt,  in  any  court  of  record 
of  this  state  having  cognizance  of  that  sum. 

§  5. — That  it  shall  be  the  duty  of  the  clerk  who  shall  issue  or  seal  any  \\Tit  of 
attachment  under  or  by  virtue  of  this  act,  forthwith  to  enter  in  a  book,  to  be  by 
him  provided  and  kept  for  that  purpose,  the  names  of  the  plaintiff  and  defendant 
in  the  said  writ,  the  sum  or  amount  therein  specified,  and  the  time  of  issuing  or 
sealing  the  same;  to  which  book  every  person  desii-ing  to  inspect  the  same  shall 
have  access  at  all  proper  seasons. 

§  6. — That  where  two  or  more  are  jointly  bound  or  indebted,  either  as  joint  ob- 
ligors, partners,  or  otherwise,  the  writ  of  attachment  may  be  issued  against  the 
separate  or  joint  estate,  or  both,  of  such  joint  debtors,  or  any  of  them,  either  by 
his  or  their  proper  name  or  names,  or  by  the  name  or  style  of  the  partnership,  or 
by  whatever  other  name  or  names  such  joint  debtors  shall  be  generally  known  and 
distinguished  in  this  state,  or  against  the  heirs,  executors,  or  administrators  of 
them  or  any  of  them;  and  the  estate  so  attached,  whether  it  be  separate  or  joint, 
shall  be  liable  to  be  sold  or  assigned  for  the  j^ayment  of  such  joint  debt. 

§  7. — That  the  writ  of  attachment  may  he  issued  against  any  alisconding  or  ab- 
sent female,  or  against  any  cm-poration  or  body  politic  not  created  or  recognized 
by  the  laws  of  this  state,  in  all  cases  in  which  such  writ  may  lawfully  issue  against 
an  absconding  or  absent  male. 

§  8. — That  the  writ  of  attachment  may  be  issued  against  the  heir  or  devisee  of 
any  deceased  debtor,  in  all  cases  in  which  the  writ  might  lawfully  have  been  issued 


I 


NEW   JERSEY.  ,  621 

against  such  debtor  in  his  lifetime;  and  all  lands,  tenements,  hereditaments,  and 
real  estate,  descended  from  or  devised  by  such  deceased  debtor  to  tlje  livir  or  devi- 
see against  whom  the  attachment  is  issued,  may  be  attached  and  taken  by  virtue 
of  the  said  writ. 

§  9. — That  any  legfacy  or  distributive  share  of  an  estate  in  the  hands  of  the  ex- 
ecutor or  administrator,  may  be  attached  and  taken  by  virtue  of  an  attachment 
issued  in  pursuance  of  this  act  against  the  legatee  or  next  of  kin. 

§  10. — -That  in  cases  where  the  lands,  tenements,  hei-editaments,  or  real  estate, 
or  the  goods  and  chattels,  rights  and  credits,  moneys  and  effects,  of  any  absconding 
or  absent  debtor  or  debtors,  shall  be  situate  or  found  in  two  or  more  counties  in 
this  state,  it  shall  be  lawful  to  issue  a  wTit  of  attachment  out  of  the  supreme  court 
into  each  county  in  which  such  i-eal  and  personal  property  shall  be  situate  or 
found;  in  which  case  the  auditor  to  be  appointed  as  hereinafter  mentioned  shall 
have  the  same  power  and  authoi-ity  over  the  said  real  and  personal  property  of  such 
absconding  or  absent  debtor  or  debtors  in  securing,  selling,  and  disposing  thereof, 
as  though  the  same  should  be  situate  or  found  in  one  county  only;  and  the  said 
auditor  shall  be  governed  as  to  the  same,  in  all  respects,  as  is  du-ected  in  other 
cases  by  this  act. 

§  11. — That  any  creditor  residing  out  of  this  state  shall  be  entitled  to  all  the 
privileges  and  benefits  of  this  act. 

§  12.  — That  the  personal  property  of  a  non-resident  of  this  state,  being  in  this 
state,  shall  not  be  liable  to  attachment  at  the  suit  of  a  non-resident  creditor,  when 
the  said  property  is  exempt  by  law  of  the  state  of  which  the  said  debtor  and  cred- 
itor are  residents. 

§  13. — That  writs  of  attachment  may  be  made  returnable  in  vacation,  and  all 
writs  of  attachment  hereafter  issued  shall  be  made  returnable  within  thirty  days 
from  the  time  of  filing  the  affidavit  upon  which  such  writ  of  attachment  may  be 
issued. 

§  14. — That  it  shall  be  lawful  for  any  creditor  or  creditors  of  any  defendant 
in  attachment,  upon  filing  ■nath  the  clerk  an  affidavit  that  the  defendant  or  de- 
fendants in  attachment  owes  unto  him  or  them  a  certain  sum,  to  be  therein  speci- 
fied, which  affidavit  shall  be  made  by  such  creditor  or  his  agent,  to  enter  at  any 
time  a  rule  in  the  minutes  of  the  court  out  of  which  a  wi-it  of  attachment  may 
have  been  issued,  admitting  such  creditor  or  creditors  as  creditor  or  creditors  under 
such  attachment,  and  which  said  rule  shall  have  the  same  force  and  efiect  as  though 
the  same  had  been  entered  in  oj^en  coiu't. 

II.      THE  EFFECT  OF  THE  WKIT  AXD  THE  MODE  OF  ITS   EXECUTION. 

§  15. — That  the  said  writ  of  attachment  shall  be  executed  in  the  following  man- 
ner, tliat  is  to  say:  The  oSicer  to  whom  it  is  directed  shall  go  to  the  house  or 
lands  of  the  defendant,  or  to  the  person  or  house  of  the  person  in  whose  custody  or 
possession  the  defendant's  property  and  estate  may  be,  and  then  and  there  de- 
clare, in  the  presence  of  one  credible  person  at  the  least,  that  he  attaches  the  rights 
and  credits,  moneys  and  effects,  goods  and  chattels,  lands  and  tenements,  of  such 
defendant,  at  the  suit  of  the  plaintiff  in  the  said  writ  named. 

§  16. — That  the  said  officer  shall,  with  the  assistance  of  one  discreet  and  impar- 
tial freeholder,  make  a  just  and  true  inventory  and  appraisement  of  all  the  prop- 
erty and  estate  of  the  defendant,  so  by  him  attached,  and  such  inventory  and 
appraisement,  dated  and  signed  by  himself  and  the  said  freeholder,  shall  annex  to 
and  return  with  the  said  writ;  and  the  said  officer  shall  indorse  on  the  said  writ 
the  true  time  of  executing  the  same,  and  sign  his  name  thereto. 

§  17. — That  the  said  writ  shall  bind  the  rights  and  credits,  moneys  and  effects, 
goods  and  chattels,  of  the  defendant,  so  as  aforesaid  attached,  from  the  time  of 
executing  the  same. 

§  18.— That  it  shall  not  be  lawful  for  any  person,  against  whom  any  attachment 
shall  issue,  after  issuing  the  same,  to  give,  grant,  bargain,  sell,  alien,  or  in  anywise 
convey  any  lands,  tenements,  hereditaments,  or  real  estate,  lying  in  any  county 
into  which  such  writ  shall  have  been  issued  or  any  interest  therein,  of  which  he 
may  be  seized,  possessed  of,  or  entitled  unto,  at  the  time  of  issuing  such  writ; 
which  said  writ  shall,  immediately  on  the  issuing  thereof,  become  and  remain  a 
lien  on  the  said  lands,  tenements,  hereditaments  and  real  estate,  as  against  the  de- 
fendant, and  all  persons  claiming  from  or  under  him,  by  vntue  of  any  such  con- 
veyance, until  the  plaintiff  and  such  of  the  creditors  of  the  defendant  as  shall  apply 
under  the  attachment  shall  be  satisfied  their  just  debts,  or  until  judgment  shall  be 


622  NEW   JERSEY. 

rendered  against  the  plaintiff  and  creditors  under  the  attachment,  or  the  said  at- 
tachment lie  discontinued;  and  all  conveyances  made  by  the  defendant,  pending 
the  said  attachment,  shall  be  void  against  the  plaintiff  in  attachment,  and  the 
creditors  that  shall  become  parties  thereto. 

§  19. — That  if  for  any  cause  the  officer  to  whom  such  writ  is  directed  shall  fail, 
neglect,  or  refuse  to  attach,  under  said  writ,  any  lands  of  the  defendant  in  his 
county,  or  if  the  defendant  shall  become  seized  or  entitled  to  any  lands  in  such 
county  after  the  return  of  such  WTit,  and  before  final  judgment  shall  be  entered  in 
the  suit,  such  writ  shall  be  a  lien  thereon  from  the  time  of  issuing  the  same,  or 
from  the  time  when  the  defendant  becomes  seized  or  entitled  to  such  lands,  as  the 
case  may  be;  and  the  court  whence  such  writ  shall  issue,  or  a  judge  or  justice 
thereof  at  chambers,  may  order  the  clerk  to  amend  the  return  to  such  writ,  by  an- 
nexing thereto  a  short  description  of  such  lands,  and  may  make  all  necessary  rules 
and  orders  for  the  disiDOsal  and  sale  of  such  lands,  as  if  the  same  had  been  attached 
by  the  proper  officer  under  said  writ. 

§  20. — That  the  word  lands  in  this  act  shall  be  construed  to  include  tenements, 
hereditaments,  and  real  estate,  and  any  interest  therein. 

§  21. — That  the  goods,  chattels,  and  personal  estate  so  attached  shall  remain  in 
the  safe  keeping  and  care  of  the  said  officer,  in  order  to  answer  and  abide  the  judg- 
ment of  the  court,  unless  the  garnishee,  after  inventory  and  appraisement  thereof, 
shall  enter  into  bond  to  such  officer,  with  two  sureties,  being  freeholders  in  the 
county,  in  double  the  sum  at  which  they  were  appraised,  with  condition  that  the 
eaid  goods,  chattels,  and  personal  estate,  or  the  full  value  thereof,  to  be  estima- 
ted by  such  appraisement,  shall  be  forthcoming  to  answer  the  judgment  of  the 
said  court. 

§  22. — That  to  enable  the  said  officer  fully  to  execute  such  writ  of  attachment, 
he  is  hereby  authorized  and  required  (having  first  made  demand  and  being  refused) 
to  break  ojien  any  house,  chamber,  room,  shop,  door,  chest,  trunk,  or  other  place 
or  thing,  where  he  shall  be  informed  or  have  reason  to  believe  any  money,  goods, 
books  of  account,  bonds,  bills,  notes,  papers,  or  writings  of  the  said  defendant  may 
be  deposited,  secreted,  had,  or  found. 

§  23. — That  if  the  sheriff  or  other  officer  shall,  by  virtue  of  any  writ  of  attach- 
ment, issued  in  pursuance  of  this  act,  attach  and  take  through  ignorance  or  want 
of  proper  information,  any  goods,  chattels,  or  effects,  which  shall  be  claimed  by  any 
person  as  his  property,  it  shall  and  may  be  lawful  for  such  sheriff  or  officer  there- 
upon to  summon  and  swear  a  jury  to  inquire  into  and  try  the  right  and  jjroperty 
thereof;  and  if  the  jiiry,  on  such  inquest,  shall  find  the  right  and  property  of  such 
goods,  chattels,  or  effects  to  be  in  the  claimant  or  in  any  other  than  the  defendant 
in  attachment,  such  sheriff  or  officer  shall  forthwith  deliver  the  said  goods,  chat- 
tels, or  effects  to  the  person  in  whom  the  property  is  so  found  by  the  inquisition, 
or  to  his  agent  or  attorney;  and  in  such  case,  such  sheriff  or  officer  shall  not  be 
liable  to  any  jirosecution  for  having  attached  and  taken  the  said  goods,  chattels,  or 
effects  through  ignorance  or  want  of  proper  information. 

§  24. — That  the  sheriff  or  other  officer  serving  any  attachment  shall  not  in  any 
case  summon  a  jury  to  try  the  right  and  property  of  any  goods,  chattels,  or  effects, 
seized  or  taken  in  attachment,  unless  the  person  claiming  light  and  title  thereto 
shall  exhibit  and  deliver  to  such  sheriff  or  officer  such  claim  in  writing,  specifying 
the  articles  and  property  claimed,  requesting  a  jury  to  be  summoned  to  try  the 
right,  and  agreeing  to  be  bound  by  and  submit  to  the  finding  of  such  jury  in  the 
jjremises:  Frovidcd  alicays,  that  the  sheriff  or  other  officer  may,  notwithstanding 
such  claim,  if  directed  so  to  do,  and  sufficiently  indemnified  by  the  plaintiff  in  at- 
tachment for  so  doing,  refuse  to  summon  such  jury;  but  the  sheriff  or  officer  in 
such  case  may  retain  the  goods,  chattels  and  effects  so  attached,  in  his  hands,  to 
answer  and  abide  the  judgment  of  the  court. 

§25. — That  when  upon  such  claim  of  right  and  title  to  the  property  attached 
the  sheriff  or  other  officer  shall  proceed  and  summon  a  jury,  he  shall  appoint  the 
time  and  place  of  trial,  and  shall  give  notice  thereof  to  the  plaintiff  in  attachment 
and  to  the  claimant  of  the  property,  which  time  shall  not  be  less  than  ten  days 
from  the  time  such  claim  shall  be  put  in;  and  the  sheriff  or  other  officer  shall  have 
power  to  administer  the  usual  oath  or  affirmation  to  the  jurors  and  witnesses;  and 
it  shall  be  the  duty  of  the  sheriff  or  officer  before  whom  such  inquest  shall  be  taken, 
to  keep  a  correct  minute  of  all  the  proceedings  before  him  had  in  the  premises,  and 
to  file  the  same,  together  Avith  the  inquest  found  by  the  jury,  and  the  claim  so  as 
aforesaid  put  in  to  the  property  attached,  in  the  office  of  the  clerk  of  the  court  out 
of  which  the  writ  of  attachment  issued,  there  to  remain  of  record. 


NEW   JERSEY.  623 

§  26. — That  the  sheriff  or  other  officer,  upon  reasonable  cause  shown  by  either 

Earty,  and  ui)on  such  terms  as  he  may  judge  proper,  may  adjourn  such  trial  and 
earnig  from  time  to  time,  as  occasion  may  require. 

§  27. — That  the  sheriff  or  other  officer  shall  have  power  to  issue  subpoenas  under 
his  hand  and  seal  for  such  witnesses  as  either  party  may  require;  which  subpoenaa 
may  be  served  as  subpoenas  for  witnesses  in  other  cases  are  required  by  law  to  be 
served;  and  the  witnesses  shall  be  entitled  to  the  same  fees,  and  be  subject  to  the 
same  penalties  as  are  provided  by  law  in  causes  depending  in  the  supreme  court. 

§  28. — That  the  jury  to  be  summoned  in  pursuance  of  the  twenty -thu-d  section 
of  this  act,  shall  consist  of  twelve  men  qualified  to  be  jurors  in  other  cases,  all  of 
whom  must  agree  to  the  verdict,  which  shall  be  reduced  to  writing,  and  signed  by 
the  jurors  and  the  sheriff  or  officer  before  whom  the  same  shall  be  taken. 

§  29. — That  in  case  the  jury  shall  find  that  none  of  the  property  claimed  by  the 
person  juitting  in  a  claim  thereto,  belongs  to  such  claimant,  then  such  claimant 
shall  pay  the  costs  of  such  inquiry,  which  shall  be  taxed  by  the  sheriff  or  other 
officer  holding  such  inqiiest,  and  on  neglect  or  refusal  of  such  claimant  to  pay  the 
same,  it  shall  be  lawful  for  the  said  sheriff  or  officer  to  issue  his  warrant  therefor, 
to  any  constable  of  the  county  in  which  such  inquest  shall  have  been  held,  com- 
manding him  to  make  the  amount  of  such  costs,  and  the  costs  of  such  warrant,  and 
of  executing  the  same  by  a  levy  ujion  and  sale  of  the  goods  and  chattels  of  such 
claimant:  Provided,  that  if  the  claimant  reside  out  of  the  county  in  which  such 
attachment  was  served,  the  sheriff  or  officer  may  requii-e  him  or  them  to  give  se- 
curity for  costs  before  such  sheriff  or  officer  shall  proceed  to  hold  such  inquest  as 
aforesaid. 

§  30. — That  if  the  jury  shall  find  the  property  claimed,  or  any  part  thereof,  to 
belong  to  the  claimant,  then  the  costs  of  such  inquiry  shall  be  paid  by  the  plaintiff 
in  attachment;  and  in  case  of  his  or  theii"  neglect  or  refusal  to  pay  such  costs,  the 
same  may  be  recovered  of  him  in  the  same  manner  as  is  provided  for  the  recovery 
of  costs  from  the  claimant  in  the  last  precedmg  section:  Provided  alvxtys,  that  the 
plaintiff  in  attachment,  in  case  he  has  to  pay  such  costs,  shall  be  entitled  to  be  re- 
paid the  same  out  of  the  estate  of  the  defendant  in  attachment,  before  any  division 
or  distribution  shall  be  made  thereof  to  or  among  the  creditors. 

§  31. — That  the  following  fees  shall  be  allowed  and  taxed  for  the  services 
required  by  this  act,  on  such  trial  of  right  and  property,  and  no  more,  that  is  to  say: 

To  the  sheriff  for  summoning  a  jury,  one  dollar; 

For  swearing  the  jury,  twenty-five  cents; 

For  swearing  each  witness,  five  cents; 

For  drawing  the  inquest,  one  dollar; 

For  keeping  a  minute  of  the  proceedings,  fifty  cents; 

For  every  ^ibpoena  issued  by  him,  ten  cents; 

For  a  warrant  for  costs  when  actually  issued,  twenty-fire  cents; 

To  the  constable  for  executing  the  warrant,  fifty  cents; 

To  the  jui'ors  each,  twenty-five  cents; 

To  the  clerk  of  the  county  for  filing  the  claim,  .sheriff's  minutes,  and  incfuest, 
twenty -five  cents;  and  for  a  copy  thereof  when  required,  at  the  rate  of  eight  cents 
a  folio. 

III.   APPEARANCE  BY  DEFENDANT. 

§  32. — That  if  the  defendant  appear  at  any  time  before  final  judgment,  and  ac- 
cept of  a  declaration  at  the  suit  of  every  or  any  one  of  the  said  creditors,  and  enter 
into  bond  as  directed  in  the  next  section  of  this  act,  then  the  said  writ  cf  attach- 
ment, report,  and  all  the  proceedings  thereon,  shall,  as  to  the  suit  wherein  such 
appearance  is  entered,  be  set  aside;  and  if  such  appearance  be  entered  to  the  suit 
of  the  plaintiff  in  attachment,  then  the  costs  which  shall  have  accrued  on  such  at- 
tachment shall  abide  the  event  of  such  suit. 

§  33. — That  if  the  defendant  appear  to  any  attachment,  he  shall  enter  into  bond 
with  one  or  more  sufficient  sureties,  being  resident  in  this  state,  in  case  the  attach- 
ment shall  have  been  issued  out  of  the  supreme  comt,  and  in  case  the  attachment 
shall  have  been  issued  out  of  the  circuit  court  or  court  of  common  jdeas,  then  in 
the  county  in  which  such  court  shall  be  held;  which  bond  shall  be  approved  of  by 
the  court,  or  a  judge  thereof,  and  shall  be  given  to  the  sheriff  of  the  county,  in 
case  the  attachment  shall  issue  out  of  any  circuit  court  or  court  of  common  pleas, 
and  to  such  sheriff  as  the  court  or  judge  shall  direct,  in  case  the  attachment  shall 
issue  out  of  the  supreme  court;  which  bond  the  sheriff  is  hereby  required  to  take 
in  his  own  name  in  double  the  amoimt  of  the  personal  property  attached,  condi- 
tioned for  the  return  of  the  goods  and  chattels,  rights  and  credits,  moneys  and  ef- 
fects, seized  and  taken  by  virtue  of  such  writ  of  attachment,  in  case  judgment  shal] 


624  NEW   JERSEY. 

be  rendered  for  the  plaintiff;  and  said  sheriff  shall,  in  case  of  a  breach  of  such  con- 
dition, on  application  of  the  plaintiff  or  any  aj  i>l}-ing-  creditor  of  the  said  deLtor, 
assign  the  said  bond  "U'ithout  fee  or  reward  to  such  person  as  the  court  shall  direct, 
to  bo  jjrosecuted  for  the  benefit  of  the  i>laintiff  and  such  creditors  as  shall  have  ap- 
plied to  the  court  or  auditors  under  such  attachment,  in  conformity  to  this  act. 

§  34. — That  a  judp-e  of  the  court  out  of  which  any  attachment  has  issued  or  may 
issue,  may  in  term  or  vacation,  upon  five  daj's'  notice  to  the  plaintiff,  or  to  any 
creditor  admitted  by  rule  under  such  attachment,  or  by  the  report  of  auditors  do. 
file,  order  the  attachment  and  all  proceedings  therein  to  be  set  aside  as  against 
such  plaintiff  or  creditor  upon  the  defendant  entering  his  appearance  at  the  suit  of 
such  plaintiff  or  creditor,  and  in  case  any  personal  property,  money  or  rights  in 
action  shall  have  been  attached  upon  the  defendant  entering  into  such  bond  with 
like  surety,  to  be  approved  by  said  judge,  as  is  directed  in  the  next  preceding  sec- 
tion of  this  act,  or  upon  the  defendant  entering  into  bond  with  like  surety,  and  ap- 
proved by  said  judge,  to  such  creditor  or  plaintiff,  in  double  the  sum  sworn  to  in 
the  affidavit  filed  by  him,  conditioned  for  the  return  of  such  goods  and  chattels, 
rights  and  credits,  moneys  and  effects  attached,  if  judgment  be  rendered  for  such 
obligee. 

§  35. — That  the  plaintiff  in  such  attachment  .shall  not  be  permitted  to  discon- 
tinue the  same,  without  the  consent  of,  or  satisfaction  made  to,  each  of  the  said 
creditors  who  shall  have  applied  to  the  court  or  auditors  as  aforesaid. 

§  3G. — That  when  said  attachment  shall  be  set  aside  as  against  the  plaintiff  and 
all  creditors  admitted  by  rule  entered  on  affidavit  or  by  report  of  auditors  on  file, 
all  property  attached,  except  real  estate,  shall  be  free  from  the  lien  thereof,  and  no 
creditor  shall  be  admitted  under  any  attachment  after  the  same  shaU  have  been  set 
aside  as  to  the  iDlaintiff  therein. 

§37. — That  if  the  said  defendant,  instead  of  giving  any  of  the  bonds  before 
mentioned,  shall  make,  execute  and  fUe  in  the  office  of  the  clerk  of  the  court  out  of 
which  any  attachment  shall  have  issued,  a  bond,  with  two  or  more  sureties,  to  be 
approved  of  by  said  court  or  a  judge  thereof,  to  the  plaintiff  in  attachment,  and  a  like 
bond  to  each  of  the  creditors,  who  shall  have  apphed  as  aforesaid,  in  double  the 
sums  respectively  sworn  to  by  them,  conditioned  for  the  payment  of  such  moneys 
as  may  be  adjudged  to  be  due  to  them  severally;  and  shall  also  enter  his  appear- 
ance to  the  suit  of  the  said  i:)laLntiff  and  each  of  said  creditors;  then  it  shall  he  law- 
ful for  the  said  coiu't  or  a  judge  thereof,  either  in  term  time  or  vacation,  if  it  shall 
appear  just  so  to  do,  to  order  the  said  attachment  to  be  set  aside,  and  that  both  the 
real  and  personal  estate  of  the  defendant  be  released  and  discharged  from  the  hen 
thereof. 

§  38. — That  it  shall  be  lawful  for  any  defendant  or  defendants,  in  any  suit  com- 
menced by  attachment,  to  enter  his,  her  or  their  appearance  to  the  suit  of  the 
plaintiff  or  plaintiffs  therein,  or  of  any  creditor  or  creditors  under  said  attachment, 
without  giving  bond  for  the  return  of  the  personal  property  attached  by  \-irtue 
thereof;  which  appearance  shall  be  entered  in  the  clerk's  book,  and  notice  thereof 
given  to  such  plaintiff  or  plaintiffs,  creditor  or  creditors,  or  his,  her  or  their  attor- 
ney or  attorneys  within  twenty  days  thereafter;  and  after  such  appearance  and 
notice,  the  suit  or  suits  of  such  plaintiff  or  plaintiffs,  creditor  or  creditors,  shall 
proceed  in  all  respects  as  if  commenced  by  summons,  and  no  other  or  further  claim 
shall  be  put  in  under  such  attachment  after  the  entry  of  such  appearance. 

§  39. — That  in  any  case  of  an  appearance  by  virtue  of  the  foregoing  section,  the 
lien  of  the  attachment  shall  continue,  and  proceedings  by  scire  facias  may  be  had 
against  any  garnishee,  and  the  movable  property  attached  shall  remain  in  the  cus- 
tody of  the  sheriff  or  his  bailee,  and  be  subject  to  the  order  and  control  of  the  court 
or  the  judge  thereof,  and  the  court  or  judge  may,  if  occasion  require,  order  the 
property  sold  as  ijerishable,  and  appoint  an  auditor  with  like  powers  in  all  re- 
spects as  if  no  appearance  had  been  entered;  but  a  judge  of  the  coiu-t  may  discharge 
the  lien  of  such  attachment  as  to  all  or  any  i^art  of  the  personal  property  attached, 
upon  four  days'  notice  to  all  parties  interested,  and  upon  the  defendant  or  defend- 
ants giving  bond,  with  securities,  in  such  amount  and  in  such  condition  as  said 
judge  may  direct. 

§  40. — That  the  plaintiff  in  attachment,  by  and  with  the  consent  of  all  of  the 
creditors  who  may  have  entered  a  rule  to  be  admitted  as  creditors  under  anv  at- 
tachment as  aforesaid,  may  enter  a  discontinuance  of  such  attachment  in  vacation; 
and  in  case  no  creditor  or  creditors  shall  have  entered  a  rule  to  be  made  creditor  or 
creditors  as  aforesaid,  the  plaintiff  in  attachment  shall  discontdnue  all  proceedinga 
in  attachment,  upon  settlement  of  his  debt. 


KEW    JEHSET.  G25 

§  41. — That  it  shall  be  the  duty  of  the  officer  by  whom  any  writ  of  attachment 
shall  be  execiiteil,  to  deliver  anj'  property  attached  by  vh-tue  of  such  writ  to  the 
person  in  whose  possession  the  same  is  found,  upon  the  execution,  in  the  presence 
of  the  officer,  of  a  bond  to  the  plaintiff,  by  such  person,  with  one  or  more  sufficient 
sureties,  in  double  the  value  of  the  property,  conditioned  that  the  defendant  shall 
perform  the  judrrment  of  the  court  in  the  action,  or  that  the  property,  <jr  its  value, 
shall  be  forthcoming  and  subject  to  the  order  of  the  court  for  the  satisfaction  of 
such  judgment.  • 

IV.      PROCEEDINGS    ON    RETCP.N   OF   WRIT. — AUDIXOR  AND   HIS   DUTIES. 

§  42.— That  it  shall  be  the  duty  of  the  court,  out  of  which  any  attachment  may 
issue,  or  of  a  judge  thereof,  to  order  the  clerk  of  such  court  to  cause  notice  of  the 
issuing  of  such  attachment,  and  at  whose  suit,  against  whose  estate,  for  what  sum, 
and  when  returned,  to  be  published  in  such  one  or  more  of  the  newspapers  in  this 
state  as  said  court  or  said  judge  shall  direct,  for  a  simce  not  less  than  two  rmd  not 
more  than  three  months;  and  judgment  shall  not  be  entered  until  proof,  to  the  sat- 
isfaction of  said  court  or  said  judge,  shall  be  made  of  such  publication. 

§  43. — That  the  plaintiff  shall  set  up,  in  the  office  of  the  clerk  of  said  court,  a 
copy  of  the  notice  required  to  be  published  by  the  next  preceding  section,  and  for 
the  same  space  of  time  as  the  same  is  therein  directed  to  be  published,  and  shall 
also  file  with  said  clerk  proof  of  the  setting  up  of  the  same,  and  thereupon  the 
court  may  order  the  defendant's  defaults  to  be  recorded. 

§  44. — That  the  court,  on  the  return  of  such  writ  of  attachment,  is  hereby  re- 
quired to  ai)point  a  fit  person  to  audit  and  adjust  the  demands  of  the  plaintiff,  and 
of  so  many  of  the  defendant's  creditors  as  shall  have  applied  to  the  court  for  that 
purpose,  or  to  the  auditor  before  he  shall  have  made  his  report;  and  it  shall  be  the 
duty  of  the  said  auditor  to  ascertain  the  sum  due  to  the  plaintiff  and  to  each  of  the 
creditors  aforesaid,  and  to  make  his  report  thereof  in  ■\\Titing,  under  his  hand,  at 
the  expu-ation  of  six  months  after  the  return  of  said  ■\\Tit,  which  report  shall  be 
filed  with  the  clerk  of  said  court. 

§  45. — That  final  judgment  may  be  entered  as  of  course,  in  term  time  or  vaca- 
tion, upon  the  rej^ort  of  the  auditor,  at  any  time  after  the  expiration  of  six  months 
from  the  return  of  the  attachment:  Provided,  the  said  report  shall  have  been  on 
file  in  the  office  of  the  clerk  of  said  court  for  at  least  ten  da5's,  and  the  said  report 
shall  have  been  first  approved  by  the  said  com-t,  or  a  judge  thereof,  and  an  order 
made  that  such  judgment  be  entered  thereon:  And  j'^rovided  further,  that  the  de- 
fendant's defaults  shall  have  been  ordered  to  be  recorded  at  each  regular  term  be- 
tween the  return  of  the  attachment  and  judgment. 

§46. — That  for  the  better  discovery  of  property  and  detection  of  fraudulent 
practices,  it  shall  and  may  be  lawful  for  the  said  auditor  to  issue  his  warrant,  un- 
der his  hand  and  seal,  commanding  the  sheriff  of  the  proper  county,  or  any  consta- 
ble in  the  same,  to  liring  before  him,  at  a  certain  time  and  place  therein  sjjecified, 
the  ■wife  of  such  defendant,  or  any  other  person,  and  him  or  her,  by  word  of  mouth 
or  interrogatories  in  ■\\Titing,  to  examine,  on  oath  or  affirmation,  which,  the  said 
auditor  is  hereby  authorized  to  administer,  touching  all  matters  relating  to  the 
trade,  dealings,  moneys,  debts,  effects,  rights,  credits,  lands,  tenements,  property, 
and  estate  of  the  said  defendant,  and  his  secret  grants,  or  fraudulent  transfer  or 
conveyance  of  the  same;  and  if  any  person  shall  refuse  to  be  sworn  or  examined  by 
or  before  the  said  auditor,  touching  any  matter  herein  directed,  then  such  person, 
so  oft'ending,  is  hereby  declared  to  be  guilty  of  a  contempt  of  the  authority  of  the 
court  which  appointed  the  said  auditor,  and  shall,  by  the  said  court,  be  proceeded 
against  accordingly. 

§47. — That  the  said  auditor  is  hereby  empowered  to  issue  his  warrant,  under 
his  hand  and  seal,  commanding^  the  sheriff  of  the  proper  county,  or  any  constable 
in  the  same,  to  break  open  (having  first  made  demand  and  been  refused)  any  house, 
chamber,  room,  shop,  door,  trunk,  chest,  or  other  jjlace  or  thing,  where  he  shall 
have  reason  to  believe  any  moneys,  goods,  chattels,  books  of  account,  bonds,  bills 
notes,  i^apers,  or  -writings  of  the  said  defendant  may  be  deposited,  secreted,  had  or 
found,  and  to  seize  and  inventory  the  same,  and  make  report  thereof  to  the  court 
at  the  then  next  term;  and  if  any  person  resist  the  execution  of  the  said  warrant, 
he  shall  be  guilty  of  a  contempt  of  the  authority  of  the  com"t  which  appointed  the 
said  auditor,  and  shall  be  proceeded  against  accordingly  by  the  said  court. 

§  48. — That  the  said  auditor  shall  have  power  to  administer  oaths  or  affirmations 

to  all  witnesses  that  may  be  produced  Ijefore  him  in  su])port  of  or  in  opposition  to 

any  claims  or  demands  that  may  be  put  in  by  the  plaintiff  in  attachment,  or  by 

any  other  jierson  or  jjersons  claiming  to  be  creditors  of  tte  defendant  in  attachment. 

II  Attachment— 15. 


C26  NEW   JERSEY. 

§  49. — That  whenever  the  said  auditor  shall  have  reason  to  believe  that  any  per- 
son or  x^ersons  are  indebted  to  the  defendant  in  attachment,  in  any  sum  of  money, 
not  exceeding  one  hundred  dollars,  on  book  account,  promissorj'  note  or  otherwise, 
it  shall  and  may  be  lawful  for  such  auditor  to  institute  a  suit,  by  summons,  before 
any  justice  of  the  peace,  in  the  name  of  the  defendant  in  attachment,  but  for  his 
use  as  such  auditor,  against  the  person  or  persons  so  by  him  believed  to  be  indebted 
as  aforesaid,  to  the  defendant  in  attachment,  for  the  recovery  thereof;  which  suit 
60  commenced  shall  not  be  discontinued  or  dismissed  without  the  consent  of  the 
said  auditor,  but  shall  proceed  to  trial  and  judgment,  in  the  same  manner  as  if  the 
plaintiff  named  therein  was  personally  present  conducting  the  same:  Provided  nl- 
%vays,  that  the  defendant  in  such  suit  shall  be  entitled  to  all  just  set-offs,  in  the 
same  manner  as  he  would  be  if  the  plaintiff  in  such  suit  was  prosecuting  the  same 
in  X-ierson,  for  his  own  use. 

§  50. — That  if  judgment  shall  be  given  in  any  such  suit  as  aforesaid,  for  the 
l>laintiff  therein,  the  money  thereby  recovered,  whether  collected  by  execution  or 
other\vise,  shall  be  x^aid  1 1  the  said  auditor  in  attachment,  to  be  by  him  disposed 
of  according  to  law;  and  if  judgment  shall  x^ass  against  the  x^laintiff  in  such  suit, 
the  said  auditor  shall  pay  the  costs  of  such  suit,  and  shall  be  allowed  to  retain  the 
same  out  of  any  moneys  or  effects  that  may  come  to  his  hands  as  such  auditor. 

§  51. — That  where  judgment,  on  the  report  of  the  said  auditor,  shall  be  entered 
against  the  said  defendant  hy  default,  the  said  auditor  may,  by  virtue  of  an  order 
of  court  for  that  purpose,  make  sale  and  assurance  of  the  goods  and  chattels,  lands 
and  tenements,  of  the  said  defendant,  which  were  attached  and  taken  as  aforesaid, 
and  upon  which  the  attachment  remains  a  lien,  or  such  i^art  thereof  as  shall  be  nec- 
essary to  satisfy  the  debts  of  the  xJaintiff,  and  the  creditors  who  may  have  applied 
agreeably  to  thfe  directions  of  this  act;  but  notice  of  the  sale  of  such  goods  and 
chattels  shall  be  set  uj?  at  live  of  the  most  i>ublic  x>lace3  in  the  county,  and  be  ad- 
vertised in  some  one  of  the  newsx^ax^ers  circulating  in  this  state,  for  the  sx^ace  of 
thirty  days  x^rior  to  such  sale;  nor  shall  any  sale  of  such  lands  and  tenements  be 
made  in  less  than  twelve  months  from  the  time  of  executing  the  writ  of  attach- 
ment, nor  of  any  goods  or  chattels,  till  judgment  be  obtained  against  the  defendant 
as  aforesaid,  unless  the  com-t  in  its  discretion  or  a  judge  thereof  shall,  on  the  re- 
turn of  the  said  writ,  or  at  any  other  time  before  judgment,  order  the  said  sheriff  or 
the  auditor  to  sell  such  goods  and  chattels;  in  which  case  advertisements  set  up  for 
the  space  of  five  days  prior  to  the  time  of  sale,  in  four  of  the  most  public  places  in 
the  townshix?,  x^recinct  or  ward,  shall  be  sufficient. 

§  52. — That  when  the  goods  and  chattels,  lands  and  tenements  of  the  defendant 
shall  be  sold  as  aforesaid,  then  it  shall  be  the  duty  of  the  said  auditor  to  serve  a 
written  notice  on  each  of  the  creditors  whose  claim  shall  have  been  admitted,  or  to 
cause  public  notice  to  be  given  in  one  or  more  of  the  newspapers  cu'culating  in  this 
state,  requu-ing  a  meeting  of  the  x>laintiff  and  creditors,  who  may  have  appjlied,  a.gree- 
ably  to  the  direction  of  this  act,  at  a  certain  time  and  place  in  the  said  notice  to  be 
Sfjecified,  which  time  shall  not  be  less  than  six  nor  more  than  ten  weeks  after  such 
notice  given,  for  the  purjiose  of  making  distribution  of  the  moneys  arising  from 
such  sale;  at  which  meeting,  or  other  subsecxuent  meeting,  to  be  continued  by  ad- 
journment, if  necessary,  the  said  auditor  shall  distribute  among  the  said  plaintiff 
and  creditoi's  equally,  and  in  a  ratable  proportion,  according  to  the  quantiun  or 
amount  of  their  respective  debts,  as  ascertained  by  the  said  rejiort  and  the  judg- 
ment thereon,  all  the  moneys  arising  from  the  sale  of  the  said  goods  and  chattels, 
lands  and  tenements,  and  all  other  monej-s  in  his  hands  as  auditor,  first  deducting 
legal  costs  and  charges;  and  if  the  said  monej-s  be  not  sufficient  to  satisfy  the  said 
debts,  then  the  said  auditor  shall  assign  to  the  said  plaintiff  and  creditors  the 
choses  in  action,  rights  and  credits  of  the  said  defendant,  in  x^roportion  to  their 
respective  debts,  so  as  aforesaid  ascertained;  which  assignment  shall  vest  the  prop- 
erty and  interoet  of  the  said  defendant  in  such  assignee,  so  as  he  may  sue  for  and 
recover  the  same  in  his  o-mi  name  and  for  his  o^vn  use;  and  in  the  said  distribution 
and  assignment,  no  x^reference  shall  be  allowed  to  debts  due  on  sx^ecialties:  And 
further,  that  the  moneys  so  distributed,  as  also  the  moneys  which  may  be  received 
by  virtue  of  such  assignment,  shall  operate  as  payment  of  such  debt,  in  whole  or  in 
part,  as  the  case  may  be;  and  the  said  auditor  is  hereby  directed  to  make  report  of 
such  distribution,  assignment  and  other  proceedings  under  this  section,  to  the 
coiu-t  at  the  next  term,  in  order  that  the  same  may  be  filed  in  the  clerk's  office. 

§  53. — That  every  grant,  bargain,  sale,  assignment,  transfer,  assiu^ance,  aliena- 
tion, and  conveyance,  made  by  the  said  auditor,  imder  and  by  virtue  of  this  act, 
shall  be  as  good  and  effectual  in  law  as  if  executed  by  the  said  defendant,  at  and 
before  the  time  when  such  attachment  became  a  lien  upon  the  estate,  real  or  per- 
sonal, so  sold,  assigned  or  conveyed. 


NEW   JERSEY.  627 

§  54. — That  any  creditor,  whose  debt  is  not  due,  may  apply  to  the  court  oi 
auditor  in  the  same  manner  as  if  it  were  due,  and  thereupon  shall  be  admitted  and 
considered  as  a  creditor  under  this  act,  and  shall  receive  a  dividend  of  the  defend- 
ant's estate  in  proportion  with  the  other  creditors,  deducting  only  a  rebate  of  legal 
interest  for  what  he  shall  receive  on  such  debt,  to  be  computed  from  the  actual 
payment  thereof  to  the  time  such  debt  would  have  become  due. 

§  55.- -That  if  any  creditor,  whether  his  debt  be  due  or  not,  shall  neglect  or  re- 
fuse to  apply  to  the  court  or  auditor  in  the  manner  prescribed  by  this  act,  he  shall 
not  be  entitled  to  any  dividend  or  distributive  share;  but  all  the  moneys  arising 
from  the  sale  of  the  defendant's  goods  and  chattels,  lands  and  tenements,  or  which 
may  be  collected  under  this  act,  shall  be  distributed  among,  and  his  choses  in  ac- 
tion, rights  and  credits,  shall  be  assigned  to,  such  of  the  creditors  as  shall  have  duly 
applied  to  the  said  court  or  auditor. 

§  5G. — That  no  plaintiff  or  other  creditor  shall  receive  any  dividend  or  assign- 
ment as  aforesaid  by  virtue  of  this  act,  until  he  shall  have  entered  into  bond  to  the 
defendant,  with  one  or  more  sureties,  being  freeholders  and  residents  in  this  state, 
to  be  approved  by  the  court  or  by  the  auditor  in  double  the  sum  so  to  be  received 
or  assigned,  with  condition  that  he  shall  appear  to  any  suit  that  may  be  brought 
against  him  by  the  said  defendant  within  one  year  next  after  the  date  of  the  said 
bond,  and  shall  pay  unto  such  defendant  any  sum  of  money  which,  by  the  judgment 
or  decree  of  the  court,  shall  appear  to  have  been  received  by  him,  and  not  due  or 
owing,  with  costs  of  suit,  which  bond  shall  be  filed  with  the  clerk  for  the  benefit  of 
the  defendant. 

§  57. — That  if  any  defendant  shall  die  after  the  return  day  of  the  writ  of  attach- 
ment, the  said  action  shall  not  be  thereby  abated  or  discontinued,  but  the  same 
shall  be  carried  on  to  judgment,  sale,  transfer,  distribution,  and  final  determina- 
tion, as  if  such  death  had  not  intervened  and  the  defendant  had  been  alive;  and  all 
proceedings  and  deeds  which  shall  be  had  and  made  in  such  case  are  hereby  declared 
to  be  as  valid  and  effectual  in  law  a»  if  they  were  had  and  made  in  the  lifetime  of 
such  defendant;  and  the  bond  entered  into  in  pursuance  of  the  preceding  section 
may,  notwithstanding  the  death  of  such  defendant,  be  prosecuted  in  Lis  name  to 
judgment  and  effect  in  the  same  manner  as  if  he  were  living. 

V.      PROCEEDINGS  AGAINST  GARNISHEE. 

§  58.  — That  the  plaintiff,  notwithstanding  the  garnishee's  denial  of  his  having 
any  moneys,  goods,  chattels,  or  effects  of  the  defendant  in  his  custody  or  posses- 
sion, or  of  his  being  indebted  to  him,  may,  if  he  really  believes  that  the  said  gar- 
nishee hath  such  moneys,  goods,  chattels,  or  effects  in  his  custody  or  possession,  or 
that  he  is  indebted  to  the  defendant,  and  is  in  fear  of  the  said  garnishee's  abscond- 
ing before  judgment  and  execution  can  be  had  against  such  garnishee,  and  shall 
make  oath  or  affirmation  thereof,  and  deliver  the  same  to  the  clerk  as  aforesaid,  in- 
stitute a  suit  against  the  said  garnishee  by  summons,  or,  in  case  of  fraud  duly 
proved  according  to  the  statute  in  such  case  made  and  provided,  by  capias  ad 
respondendum;  in  which  suit  the  plaintiff  may  declare  against  the  said  garnishee  for 
the  moneys,  goods,  chattels,  or  effects  so  as  aforesaid  in  his  custody  or  possession, 
in  trover  and  conversion,  as  of  such  j^laintiff's  own  proper  moneys,  goods,  chattels, 
and  effects;  or  if  the  said  garnishee  be  indebted  to  the  defendant  in  attachment, 
then  the  jilaintiff  may  declare  for  so  much  money  had  and  received  by  such  gar- 
nishee to  the  use  of  the  plaintiff,  and,  on  the  trial,  may  give  the  special  matter  in 
evidence,  and  thereupon  the  jury  shall  find  for  the  said  plaintiff,  and  assess  dam- 
ages to  the  full  value  of  the  moneys,  goods,  chattels,  or  effects  so  proved  to  be  in 
the  custody  or  possession  of  such  garnishee,  or  to  the  full  value  of  the  debt  so  due 
from  such  garnishee  to  the  defendant  in  attachment;  on  which  verdict,  judgment 
shall  be  given,  with  costs  of  suit,  and  execution  issued  thereon  against  the  goods 
and  chattels,  lands  and  tenements,  and  the  body  of  the  said  garnishee,  as  is  or 
shall  be  by  law  allowed  in  actions  of  trespass  on  the  case. 

§  59. — That  the  suit  so  instituted  against  the  said  garnishee  shall  be  continued 
by  the  court,  without  trial  or  decision,  until  the  action  against  the  defendant  in  at- 
tachment shall  be  adjudicated  upon  and  determined;  and  if  in  such  action  nothing 
shall  be  found  due  from  the  defendant  to  the  plaintiff,  then  the  garnishee  sh:^ll  re- 
cover costs  against  the  plaintiff,  notwithstanding  he  may  be  indebted  to  tlio  defend- 
ant, or  have  the  moneys,  goods,  chattels,  or  effects  of  such  defendant  in  his  custody 
or  possession. 

§  CO. — That  if,  in  the  suit  so  instituted  against  the  garnishee,  the  plaintiff  shall 
be  nonsuited,  or  shall  discontinue,  or  verdict  and  judgment  shall  be  given  against 
him,  then  the  said  garnishee  shall  recover  costs. 


'628  NEW   JERSEY. 

§  61. — That  wtere  judgment  on  the  report  of  the  auditor  shall  be  entered 
against  the  defendant  by  default,  a  scire  facias  shall  (except  only  as  is  herein- 
before mentioned)  issue  against  the  garnishee,  to  appear  at  the  next  term  after 
entry  of  such  judgment,  and  show  cause  why  the  plaintiff  should  not  have  execu- 
tion of  the  money  so  as  aforesaid  due  by  him  to  the  defendant,  and  in  his  hands,  or 
the  value  of  the  goods  and  chattels  of  the  defendant,  which  were  in  the  custody  or 
possession  of  such  garnishee  at  the  time  of  executing  the  writ  of  attachment;  and 
if  the  garnishee  shall  appear  at  the  return  of  the  said  scire  facias,  and  on  oath  or 
otherwise,  to  the  satisfaction  of  the  auditor,  confess  the  amount  of  the  debt  due 
from  him  to  the  defendant,  or  the  true  value  of  the  defendant's  goods  and  chattels, 
which  were  as  aforesaid  in  his  custody  or  possession,  and  tender  the  same  to  the 
auditor,  and  he  accei)t  thereof,  then  he,  the  said  garnishee,  shall,  by  the  judgment 
of  the  court,  be  acquitted  and  discharged  from  the  debt,  or  goods  and  chattels  afore- 
said, with  costs;  and  if,  the  said  scire  facias  having  been  returned  served,  or  in  case 
no  service  thereof  can  be  made,  having  been  published  as  prescribed  by  law,  the 
garnishee  shall  not  a^jpear,  confess,  and  tender  as  aforesaid,  then  judgment  shall 
be  entered  against  such  garnishee  by  default,  and  a  writ  of  inquiry  shall  be 
awarded  to  the  sheriff  or  other  officer,  to  inquire  and  certify  to  the  court,  by  the 
oath  or  affirmation  of  twelve  good  and  lawful  men  of  his  bailiwick,  the  amount  of 
the  debt  due  from  such  garnishee,  or  the  value  of  the  goods  and  chattels  so  as  afore- 
said in  his  custody  or  possession,  and  on  the  return  of  such  inquisition,  judgment 
shall  be  entered  against  the  said  garnishee  for  the  sum  so  found  and  certified,  with 
costs;  and  if  the  garnishee  shall  appear  at  the  return  of  the  said  scire  facias,  and 
plead  thereto  that  he  had  no  goods  or  chattels  of  the  defendant  in  his  custody  or 
possession,  either  at  the  time  of  executing  the  writ  of  attachment,  or  at  any  time 
since,  or  that  he  was  not  indebted  to  the  defendant,  and  the  plaintiff,  on  trial,  shall 
prove  that  he  was  indebted,  then  the  j  ury  shall  find  for  the  plaintiff,  and  assess 
damages  to  the  amount  or  value  of  such  debt,  goods,  or  chattels,  with  costs,  and 
judgment  shall  be  entered  accordingly,  and  execution  awarded  against  the  goods 
and  chattels,  lands  and  tenements,  and  also  the  person  of  the  said  garnishee;  but 
if  the  jm-y  find  for  the  garnishee,  then  he  shall  recover  costs  against  the  plaint- 
iff, and  have  execution  for  the  same,  and  the  said  auditor  shall  pay  the  same  out 
of  any  moneys  in  his  hands;  the  moneys  realized  by  such  proceedings  shall  go  to 
the  auditor  for  distribution  under  this  act. 

GENERiUi  PROVISIONS. 

§  75. — That  this  act  shall  be  construed  in  all  courts  of  judicature  in  the  most 
liberal  manner  for  the  detection  of  fraud,  the  advancement  of  justice,  and  the 
benefit  of  creditors. 

§  76. — That  all  orders  for  the  appointment  of  auditors,  for  the  sale  of  perishable 
property,  for  advertising  the  attachment,  for  the  sale  of  the  defendant's  i)roperty, 
and  all  other  orders  not  specifically  required  by  this  act  to  be  made  in  open  court, 
may  be  made  out  of  com-t  by  a  judge  of  the  com-t  in  which  the  action  is  pending, 
in  term-time  or  vacation. 

§  77. — That  in  all  cases  where  writs  of  attachment  have  heretofore  been  issued, 
or  may  hereafter  be  issued,  and  no  proceedings  have  been  or  shall  be  had  thereon, 
for  the  period  of  twenty  years,  the  same  shall  cease  to  bind  the  property  and  estate 
of  the  defendant  so  attached  at  the  expiration  of  the  said  twenty  years. 


Before  justices  of  the  peace— Page  53,  sees.  62-71,  and  Stats.  1879,  p.  115;  fees, 
B£cs.  72-74. 

Ships,  liens  against— Page  586,  sees.  1-44,  and  Stats.  1878,  pp.  158>  159. 

Railroads  operating  in  New  Jersey — Page  921,  sec.  71. 

In  district  (city)  courts— Page  1.328,  sees.  159-166. 

Mandamus  on  foreign  corporations  enforced  by  attachment  of  goods — Stats. 
1881,  p.  95,  sec.  2. 

Exemptions— Personalty,  p.  44,  sec.  12;  of  merchandise,  p.  79,  sec.  20;  to  fam- 
ily of  decedent,  p.  762,  sec.  52;  homestead,  p.  1055,  sec.  63;  wages,  etc.,  p.  1265, 
sec.  2. 


NEW   MEXICO.  629 


NEW  MEXICO. 

[Compiled  Laws,   1884.] 


CHAPTER  VII. 

ATTACHMENTS. 


§  TJ23. — Creditors,  whose  demands  amount  to  one  hundred  dollars  or  more,  may 
Bue  tlieu"  debtors  in  the  district  court,  by  attachment,  in  the  following  cases,  to  wit: 

Fird.    When  the  debtor  is  not  a  resident  of,  nor  resides  in  this  territory. 

Scrond.  When  the  debtor  has  concealed  himself,  or  absconded,  or  absented  him- 
self from  his  usual  jilace  of  abode  in  this  territory,  so  that  the  ordinary  process  of 
lav.'  cannot  lie  passed  upon  him. 

Third.  When  the  debtor  is  about  to  remove  his  property  or  effects  out  of  this 
territory,  or  has  fraudulently  concealed  or  disposed  of  his  property  or  effects  so  as 
to  defraud,  hinder,  or  delay  his  creditors. 

Fourth.  When  the  debtor  is  about  fraudulently  to  convey  or  assign,  conceal  or 
dispose  of  his  property  or  effects,  so  as  to  hinder,  delay,  or  defraud  his  creditors. 

Fifth.  When  the  debt  was  contracted  out  of  this  territory,  and  the  debtor  has 
absconded  or  secretly  removed  his  property  or  effects  into  the  territory,  with  the 
intent  to  hinder,  delay,  or  defraud  his  creditors. 

Si.cth.  AVhere  the  defendant  is  a  corporation  whose  principal  office  or  place  of 
business  is  out  of  this  territorj',  unless  such  corporation  shall  have  a  designated 
agent  in  the  territory,  upon  whom  service  of  process  may  be  made  in  suits  against 
the  corporation. 

Scre.ith.  Where  the  defendant  fraudulently  contracted  the  debt  or  incurred  the 
obligation  respecting  which  the  suit  is  brought,  or  obtained  credit  from  the  plaintiff 
by  false  pretenses,  an  attachment  may  issue  on  a  demand  not  yet  due  in  any  case 
■where  an  attachment  is  authorized,  in  the  same  manner  as  upon  demands  akeady 
due. 

§  191!4. — In  all  cases  commenced  by  attachment  issued  on  a  demand  or  demands 
not  yet  due,  it  shall  be  sufficient  for  the  plaintiff  to  file  in  the  office  of  the  clerk  of 
the  district  court  an  affidavit  and  bond  as  now  required  by  law,  but  he  shall  not 
file  in  such  office  his  petition  or  declaration  until  after  said  demand  or  demands 
shall  become  due.  If  such  demand  or  demands  become  due  during  a  term  of  the 
court  from  which  the  attachment  issued,  said  plaintiff  shall  file  his  declaration 
within  such  reasonable  time  thereafter  as  may  be  fixed  by  the  court;  and  if  said 
demand  or  demands  become  due  at  any  time  when  the  court  from  which  the  attach- 
ment issuer!  i.3  not  in  session,  said  i^laintiff  shall  file  his  declaration  within  twenty 
days  after  the  last  of  such  demands  shall  become  due,  unless  the  judge  of  said  court 
shall  for  good  cause  showTi  enlarge  said  time,  and  after  the  declaration  is  filed  as 
hereinbefore  provided,  the  suit  shall  proceed  the  same  as  in  ordinary  cases. 

§  1925. — At  the  term  to  which  any  writ  of  attachment  issued  upon  a  demand 
not  yet  due  shall  be  made  returnable,  the  defendant  shall  be  required  to  appear 
genei-ally  in  the  case,  and  he  may  put  in  his  answer,  withor.t  oath,  denying  the 
truth  of  any  material  fact  contained  in  the  affidavit  to  which  the  plaintiff"  may 
reply,  and  thereiipon  a  trial  of  the  truth  of  the  affidavit  shall  be  had  in  the  man- 
ner now  iH-ovided  Ity  law.  If  upon  such  trial  the  issue  is  found  in  favor  of  the 
defendant,  the  attachment  shall  be  dissolved,  but  such  dissolution  shall  not  nhate 
the  suit,  and  the  defendant  shall  l^e  held  to  be  in  court  so  that  he  may  be  ruled  to 
plead  to  the  jilaintiff's  declaration  when  the  same  is  filed  in  the  manner  and  within 
the  time  hereinbefore  provided. 

§  192(j. — Wherever  an  attachment  may  issue  against  the  property  of  any  per- 
son ui)on  any  debt  or  other  action  founded  upon  a  writ  of  contract  for  the  same 
cause.;,  the  attachment  may  also  issue  upon  any  action  founded  upon  a  tort  or 
other  action  ex  delicto;  this  law  shall  apply  to  actions  which  have  heretofore  or  may 
hereafter  accrue. 

§  1927. — A  creditor  wishing  to  sue  his  debtor  by  attachment,  may  place  in  the 
clerk's  office  of  the  district  court  of  any  county  in  this  territory  a  petition  or  other 


630  NEW   MEXICO. 

lawful  statement  of  his  cause  of  action,  and  shall  also  file  an  affidavit  and  bond; 
antl  thereupon  such  creditors  may  sue  out  an  original  attachment  against  the  lands, 
■tenements,  goods,  moneys,  effects  and  credits  of  the  debtor  in  whosesoever  hands 
they  may  be. 

§  1928. — The  affidavit  shall  be  made  by  the  plaintiff,  or  some  person  for  him, 
and  shall  state  that  the  defendant  is  justly  indebted  to  the  plaintiff  after  allowing 
all  just  credits  and  offsets,  in  a  sum  (to  be  sj^ecified  in  the  affidavit),  and  on  what 
account;  and  shall  also  state  that  the  affiant  has  good  reason  to  believe,  and  doea 
believe,  the  existence  of  one  or  more  of  the  causes  which,  according  to  the  provi- 
sions of  section  1923,  will  entitle  the  yjlaintiff  to  sue  by  attachment. 

§  1929. — The  bond  shall  be  executed  by  the  plaintiff  or  some  responsible  person 
as  principal,  and  two  or  more  sureties,  residents  of  the  ten-itory,  in  a  sum  at  least 
double  the  amount  sworn  to,  i^ayable  to  this  territory,  conditioned  that  the  plaint- 
iff shall  i^rosecute  his  action  without  delay  and  with  effect,  and  refund  all 
sums  of  money  that  may  be  adjudged  to  be  refunded  to  the  defendant,  and  pay  all 
damages  that  may  accrue  to  any  defendant  or  garnishee  by  reason  of  this  attach- 
ment or  any  i^rocess  of  judgment  thereon. 

§  19.30. — The  securities  on  attachment  bonds  shall  be  residents  of  this  territory, 
and  shall  acknowdedge  the  execution  of  such  bond  by  them,  in  the  manner  and 
before  such  officer,  as  may  be  prescribed  by  law  for  the  acknowledgment  of  con- 
veyances of  real  estate. 

§  1931. — The  clerk  shall  judge  of  the  sufficiency  of  the  penalty  and  the  security 
in  the  bond;  if  they  be  approved,  he  shall  indorse  his  approval  thereon,  and  the 
same,  together  with  the  affidavits  and  petition  or  other  lawful  statement  of  the 
cause  of  action,  shall  be  filed  before  an  attachment  shall  be  issued. 

§1932. — The  bond  given  by  the  plaintiff,  or  other  person,  in  a  .suit  by  attach- 
ment, may  be  sued  on  by  any  party  injured,  in  the  name  of  the  territory,  and  shall 
proceed  as  in  ordinary  suits,  and  shall  recover  such  damages  as  he  may  sustain. 

§  1933. — Original  writs  of  attachment  shall  be  directed  to  the  sheriff  of  the 
proper  county,  commanding  him  to  attach  the  defendant,  by  all  and  singular  his 
lands  and  tenements,  goods,  moneys,  effects,  and  credits,  in  whosesoever  hands  the 
same  may  be  found,  with  a  clause  of  the  natiure  and  to  the  effect  of  an  ordinary 
citation  to  answer  the  action  of  the  plaintiff. 

§  1934. — Original  writs  of  attachment  shall  be  issued  and  returned  in  like  man- 
ner as  ordinary  writs  of  citation;  and  w^hen  the  defendant  is  cited  to  answer  the 
action,  the  like  proceedings  shall  be  had  between  him  and  the  plaintiff  as  in  ordi- 
nary actions  on  contracts,  and  a  general  judgment  may  be  rendered  for  or  against 
the  defendant. 

§  1935. — The  manner  of  serving  writs  of  attachment  shall  be  as  follows: 

First.  The  writ,  or  other  lawful  statement  of  the  cause  of  action,  shall  bo 
served  on  the  defendant  as  an  ordinary  citation. 

Second.  Garnishees  shall  be  summoned  by  the  .sheriff,  declaring  to  them  that  he 
summons  them  to  appear  at  the  return  term  of  the  ^vrit  to  answer  the  interrogato- 
ries which  may  be  exhibited  by  the  plaintiff,  and  by  reading  the  writ  to  them  if 
required. 

Third.  When  lands  or  tenements  are  to  be  attached,  the  officer  shall  briefly 
describe  the  same  in  his  return,  and  state  that  he  attached  all  the  right,  title  and 
interest  of  the  defendant  to  the  same,  and  shall  moreover  give  notice  to  the  actual 
tenants,  if  any  there  be. 

Fourth.  When  goods  and  chattels,  moneys,  effects,  or  evidences  of  debt  are 
to  be  attached,  the  officer  shall  seize  the  same  and  keep  them  in  his  custody  if 
accessible,  and  if  not  accessible  he  shall  summon  the  person  in  whose  hands  they 
may  be  as  garnishee. 

Fifth. — \\Tien  the  credits  of  the  defendant  are  to  be  attached,  the  officer  shall 
declare  to  the  debtor  of  the  defendant  that  he  attached  in  his  hands  aU  debts  due 
from  him  to  the  defendant,  or  so  much  thereof  as  shall  be  sufficient  to  satisfy  the 
debt,  interest,  and  costs,  and  summon  such  person  as  garnishee. 

§  1936.— All  persons  shal  be  summoned  as  garnishees  who  are  named  as  such 
in  the  writ,  and  such  others  as  the  officers  shall  find  in  the  possession  of  goods, 
money,  or  effects  of  the  defendant  not  actually  seized  by  the  officers  and  creditors 
of  the  defendant,  and  also  such  as  the  plaintiff  or  his  agent  shall  direct. 

§  1937.— Notice  of  garnishment  shall  have  the  effect  of  attaching  all  personal 
property,  money,  rights,  credits,  bonds,  bills,  notes,  drafts,  checks  or  other  choses  in 
action,  'due  or  to  become  due,  from  the  garnishee  to  the  defendant,  or  belonging  to 


NEW   MEXICO.  631 

the  defendant  and  in  the  garnishee's  possession,  charge,  or  under  his  control  at 
the  time  of  the  service  of  the  garnishment,  or  which  may  come  into  liis  possession 
or  charge,  or  under  his  control,  or,  for  or  on  account  of  which  he  may  become 
indebted  to  the  defendant,  between  that  time  and  the  time  of  filing  his  ans^y■er; 
but  he  shall  not  be  liable  to  a  judgment  in  money  on  account  of  such  bonds,  bills, 
notes,  drafts,  checks,  or  other  choses  in  action,  unless  the  same  shall  have  been 
converted  into  money  since  the  garnishment,  or  he  fail  in  such  time  as  the  court 
may  prescribe  to  deliver  them  into  court,  or  to  the  sheriff,  or  other  person  desig- 
nated Ijy  the  court.  Any  debt  or  legacy  due  or  to  become  due,  by  an  executor  or 
administrator,  and  any  goods,  effects  or  credits  in  the  hands  of  an  executor,  or 
administra.tor  as  such,  may  be  attached  in  his  hands  by  process  of  garnishment, 
and  in  like  manner  money,  effects,  and  credits,  due  or  belonging,  or  to  become  due 
to  an  executor  or  administrator,  as  such,  may  be  attached  in  the  hands  of  the 
debtor  or  person  holding  the  same. 

§  1938. — When  the  defendant  cannot  be  cited,  and  his  property  or  effects  shall 
be  attached,  if  he  do  not  appear  and  answer  to  the  action  at  the  return  term  of  the 
■writ,  within  the  fii'st  two  days  thereof,  the  court  shall  order  a  publication  to  be 
made,  stating  the  nature  and  amount  of  the  plaintiff's  demand,  and  notifying  the 
defendant  that  his  proj^erty  has  been  attached,  and  that  unless  he  ajipears  at  the 
next  term,  judgment  will  be  rendered  against  him,  and  his  property  sold  to  satisfy 
the  same;  which  notice  shall  be  published  four  weeks  successively  in  some  news- 
paper Y>rinted  in  this  territory,  the  last  insertion  to  be  not  less  than  two  weeks 
before  the  first  day  of  the  next  term;  but  if  there  should  be  no  newspaper  printed 
in  this  territory,  said  notice  shall  be  published  by  not  less  than  six  hand-bills  put 
up  at  six  different  public  places  in  the  county,  at  least  six  weeks  before  the  first 
day  of  the  next  term. 

§  19.39. — The  law  of  this  territory  in  regard  to  attachments,  is  so  amended,  that 
where  the  defendant  cannot  be  served  personally  with  the  process,  and  shall  have 
no  place  of  residence  in  this  territory,  and  the  property  of  the  defendant  shall 
have  been  attached  in  time  to  make  the  necessary  publication  as  now  required 
by  law,  the  officer  executing  the  said  process,  or  the  agent  or  attorney  of  the 
plaintiff  in  said  case,  is  hereby  authorized  to  make  publication  of  notice  to  tha 
defendant  in  such  attachment  in  thj  manner  now  prescribed  by  law,  which  shall 
have  the  same  force  and  effect  to  compel  the  appearance  of  t'ne  defendant  in  any 
such  suit  in  attachment,  as  if  such  publication  of  notice  had  been  in  conformity  to 
an  order  of  com't  ai  heretofore  required;  and  upon  satisfactory  proof  being  made 
to  the  com-t  of  the  publication  of  said  notice,  the  plaintiff  may  proceed  in  said  case 
as  if  the  process  had  been  served  personally  upon  the  said  defendant. 

§  1940. — "When  the  defendant  shall  be  notified  by  publication,  as  aforesaid,  and 
shall  not  appear  and  answer  the  action,  judgment  by  default  may  be  entered, 
which  may  be  i^roceeded  on  to  final  judgment  as  in  ordinary  actions,  but  such 
judgment  shall  only  bind  the  property  attached,  and  shall  be  no  evidence  of 
indebtedness  against  the  defendant  in  any  subsequent  suit. 

§  1941. — When  property  of  the  defendant  found  in  his  possession,  or  in  the 
hands  of  any  other  i^erson,  shall  be  attached,  the  defendant,  or  such  other  person, 
may  retain  jjossession  thereof,  by  giving  bond  and  security  to  the  satisfaction  of 
the  officer  executing  the  writ,  to  the  officer  or  his  successor,  in  double  the  value  of 
the  property  attached,  conditioned  that  the  same  shall  be  forthcoming  when  and 
where  the  court  shaU  direct,  and  shall  abide  the  j  udgment  of  the  court. 

§  1942. — The  officer  executing  the  writ  of  attachment  shall  return,  with  the 
writ,  all  bonds  taken  by  him  in  virtue  thereof,  a  schedule  of  all  property  and 
effects  attached,  and  the  names  of  all  the  garnishees,  the  times  and  places  when 
and  where  respectively  summoned. 

§  1943. — If  the  officer  willfully  fail  to  return  a  good  and  sufficient  bond,  in  any 
case*vhere  bond  is  required  by  this  law,  he  shall  be  held  and  considered  as  security 
for  the  jjerformance  of  all  acts,  and  the  i^ajonent  of  all  money  to  secure  the  p>er- 
formance  of  which  such  bond  ought  to  have  been  taken. 

§  1944. — In  all  cases  when  property  or  effects  shall  be  attached,  the  defendant 
may,  at  the  court  to  which  the  writ  is  returnable,  put  in  his  answer,  without  oath, 
denying  the  truth  of  any  material  fact  contained  in  the  affidavit,  to  which  the 
plaintiff  may  reply;  a  trial  of  the  truth  of  the  affidavit  shall  be  had  at  the  same 
term,  and  on  such  trial  the  plaintiff  shall  be  held  to  prove  the  existence  of  the 
facts  set  forth  in  the  affidavit,  as  the  ground  of  the  attachment,  and  if  the  issue 
shall  be  found  frjr  him  the  cause  shall  proceed,  but  if  it  be  found  for  the  defendant 
the  cause  shaU  be  dismissed  at  the  cost  of  the  plaintiff. 


G32  NEW    MEXICO. 

§  1945. — The  plaintiff  may  exhibit  in  the  cause,  -VTritten  allegations  and  inter- 
rogatories at  the  retiirn  term  cf  the  writ,  and  not  afterward,  touching  the  jjrop- 
erty,  effects  and  credits  attached  in  the  hands  of  any  garnishee.  The  gami.shee 
shall  exhibit  and  file  his  answer  thereto,  on  oath,  during  such  term,  unless  the 
court  for  good  cause  shown  shall  order  otherwise.  In  default  of  such  answer,  or 
of  a  sufficient  answer,  the  plaintiff  may  take  judgment  by, default  against  him, 
or  the  court  may,  upon  motion,  compel  him  to  answer  by  attachment  of  hij  body. 

§  1940. — Such  judgment  by  default  may  be  proceeded  on  to  final  judgment  in 
like  manner  as  in  cases  of  the  defendant  in  actions  upon  contracts,  but  no  final 
judgment  shall  be  rendered  against  the  garnishee  imtil  "there  shall  be  final  judg- 
ment against  the  defendant. 

§  1947. — The  plaintiff  may  deny  the  answer  of  the  garnishee  in  whole  or  in 
part,  and  the  issue  shall  be  tried  as  ordinary  issues  between  plaintiffs.  If  on  such 
trial  the  property  or  effects  of  the  defendant  be  found  in  the  hands  of  the  gar- 
nishee, the  value  thereof  shall  be  assessed  and  judgment  shaU  be  rendered  for  the 
proper  amount  of  money.  If  the  answer  of  the  garnishee  be  not  excepted  to  nor 
denied  at  the  same  term  at  which  it  is  filed,  it  shall  be  taken  to  be  true  and 
sufHcient. 

§  1943. — If  by  the  answer,  not  excepted  to  nor  denied,  it  shall  appear  that  the 
garnishee  is  possessed  of  property  or  effects,  of  the  defendant,  or  is  indebted  to 
tha  defendant,  the  value  of  the  property  or  effects,  or  of  the  debt,  being  ascertained, 
judgment  may  be  rendered  against  the  garnishee. 

§  1949. — In  all  cases  of  controversy  between  the  plaintiff  and  garnishee,  the 
parties  may  be  adjudged  to  pay  or  recover  costs  as  in  ordinary  cases  between 
plaintiff  and  defendant. 

§  19 jO. — -Vny  person  wishing  to  sue  his  debtor  by  attachment,  where  the  debt 
or  sum  claimed  exceeds  the  sum  of  one  hundred  dollars,  may  do  so  by  first  filing 
with  the  clerk  of  the  district  comi;  of  the  county  in  which  the  debtor  lives,  or 
before  the  clerk  of  the  probate  court  of  the  county  in  which  the  suit  is  brought, 
an  affidavit  and  bond,  as  now  requh-ed  to  be  done  before  the  clerk  of  the  district 
coiu't,  which  shall  authorize  the  clerk  before  whom  said  affidavit  anel  bond  shall  be 
filed  to  issue  Avrits  of  attachment,  the  same  as  clerks  of  the  district  court,  which 
attachment,  together  with  the  affidavit  and  bond,  when  issued  by  clerks  of  the  i:)ro- 
bate  court,  shall  be  by  them  made  returnable  to  the  next  term  of  the  district  court 
for  the  proTJer  count j',  and  shall  be  by  them  retiuned  to  said  district  court  on  or 
before  the  first  day  of  said  term. 

§  19.31. — The  form  of  said  affidavit  shall  be  as  follows,  to  wit: 
Territoiiy  of  New  Mexico,  ) 

County  of —  j  ^^"      This  day  personally  appeared  before  me  the 

undersi  jne  J  clerk  of  the  [district  court  or  probate  coiu-t,  as  the  case  may  bo],  A.  B. 
[or  C.  D.,  agent  for  A.  B.,  as  the  case  may  be],  and,  being  duly  sworn,  says  that 
E.  F.  i.j  justly  indebted  to  the  said  A.  B.  in  the  sum  of  dollars,  after  allow- 
ing all  just  offsets,  and  that  the  said  E.  F.  is  [setting  forth  one  of  the  causes  of 

attachment.]  A.  B.  — . 

or  C  D.,  agent  for  A.  B.  — . 

Sworn  to  and  subscribed  before  me  this day  of  A.  D. . 

Clerk. 

§  19j2.  — The  form  of  said  bond  shall  be  as  follows,  to  wit: 

Know  all  men  by  these  presents,  That  we  [A.  B.,  principal,  or  C  D., 
agent  for  A.  B.,  principal,  as  the  case  may  be],  and  X.  N.  and  M.  ^I.  his  securi- 
ties, arc  held  and  firmly  bound  unto  the  territory  of  Xew  }.Iexico,  in  the  sum  of 
dollars,  for  the  pajTnent  of  which,  well  and  truh'  to  be  made,  we  bind  our- 
selves, our  heirs,  executors  and  administrators,  firmly  by  these  presents.  Sealed 
with  our  seals  and  dated  this  day  of A.  D. . 

The  condition  of  the  said  above  obligation  is  such  that,  whereas  the  above  fiamed 
A.  B.  has  this  day  sued  out  an  attachment  before  J.  J.,  clerk  of  the  [district  court 

or  probr.te  court,  as  the  case  may  [ts],  against  E.  F.,  for  the  sum  of  dollars, 

returnable  to  the  next term  of  the  district  court  for  the  county  of : 

Now,  if  the  said  A.  B.  shall  prosecute  his  said  action  without  delay,  and  with 
effect,  and  refund  all  sums  of  money  that  maj'  be  adjudged  to  be  refunded  to  the 
defendant,  and  pay  all  damages  that  may  accrue  to  any  defendant  or  garnishee  by 
reason  of  said  attachment,  or  any  process  of  judgment  thereon,  then  this  obliga- 
tion to  be  null  and  void,  otherwise  to  remain  in  full  force  and  effect. 

A.  B.  [l.  s.] 

X.   X.  [L.  s.' 

M.  M. [L.  s.' 


NEW   MEXICO.  633 

§1053. — In  all  suits  in  the  district  courts  by  attachment,  when  the  property 
attached  shall  be  of  a  perishable  nature,  and  liable  to  be  lost  or  diminishetl  in 
value  before  the  final  adjudication  of  the  case,  and  the  defendant  shall  not  give 
bond  to  retain  possession  of  the  same,  the  plaintiff  or  defendant  may  make  out  a 
petition  in  writing  setting  forth  the  kind,  nature  and  condition  of  the  proj^erty, 
and  present  said  ]ietition  to  the  judge  of  the  district  in  vacation;  and  if  he  shall 
find  it  sufficient  in  form  and  conditions,  he  may  hear  the  testunony  of  witnesses  as 
to  the  property,  and  if  he  shall  believe  that  the  interests  of  both  x'laintiff  and 
defendant  will  be  jiromoted  by  the  sale  of  the  property,  may  order  such  sale  to  be 
made  and  direct  the  manner  thereof. 

§  1954. — In  such  case  the  judge  may  appoint  some  one  to  make  such  sale,  and 
require  such  bond  and  security  to  be  given  for  the  faithful  performance  of  the 
same  and  the  accounting  for  the  proceeds  and  paying  the  same  over,  as  the  nature 
of  the  case  may  demand. 

§  1955. — The  judge  may,  if  he  shall  find  the  safety  of  the  property  or  the 
seciu'ity  of  the  proceeds  shall  require  it,  appoint  a  special  receiver  to  tr.ke  possession. 
of  the  same,  after  giving  such  bond  and  security  as  the  judge  shall  ai^prove. 

§  1956.  — All  such  proceeds  of  sale  of  property  shall  be  delivered  to  such  person 
as  the  judge  or  court  shall  determine  entitled  to  the  same  upon  the  final  disposi- 
tion of  the  suit. 

§  1957. — The  judge  or  court  may  allow  to  the  receiver,  or  jDerson  making  said 
sale,  a  reasonable  compensation  for  his  services,  and  the  necessary  costs  for  keep- 
ing and  preserving  the  property. 

§  1958.  — Hereafter  in  any  civil  suit  pending,  or  which  may  hereafter  be  brought, 
when  the  summons  against  the  defendant  has  been  returned  "executed,"  the 
plaintiff,  his  agent,  or  attorney,  may  at  any  time  before  judgment  file  an  affidavit 
with  the  clerk  of  the  court  in  which  the  suit  is  pending,  and  give  bond  Mith  secu- 
rity as  in  cases  of  original  attachments;  and  thereupon  the  clerk  must  issue  an 
attachment,  returnable  as  in  other  cases  of  original  attachments. 

§19.59. — In  all  cases  when  attachments  are  sued  out  ancillary  to  the  original 
suit,  the  suit  must  thereafter  proceed  in  all  resi^ects  as  if  it  had  been  commenced 
originally  by  attachment. 

§  19G0.— In  all  cases  hereafter  commenced  by  attachment,  in  which  the  truth 
of  the  afiidavit  for  attachment,  or  of  any  material  allegation  therein  contained 
shall  be  denied,  and  the  issue  thus  formed  shall,  upon  the  trial,  be  found  for  the 
defendant,  the  attachment  shall  be  dismissed,  and  all  i^roperty,  rights,  effects,  and 
credits  held  or  affected  thereby,  pr  thereunder,  shall  be  released  and  discharged 
from  the  operation  thereof;  but  such  dismissal  of  the  attachment  shaU  not  abate 
the  suit,  but  the  same  shall  firoceed  as  in  ordinary  cases. 

§  19G1. — When  the  process  of  attachment  shall  issue  against  a  party,  who  shall 
have  or  o'«ti  any  interest  or  amount  of  shares  in  any  company  doing  business  in, 
or  corporation  incorporated  under  the  laws  of  this  territorj',  or  any  foreign  cor- 
poration doing  business  in  this  territory,  the  same  may  be  attached  in  the  follow- 
ing manner:  The  officer  in  whose  hands  the  attachment  is  placed  sha.l  indorse  an 
entry  thereon  of  his  levy,  on  the  corporate  shares  or  interest  of  the  defendant, 
and  shall  forthv/ith  serve  a  copy  of  the  attachment  so  indorsed  upon  the  president 
of  the  company  or  corporation  at  the  office  of  the  company,  or  by  leaving  the 
same  at  the  usual  and  most  notorious  place  of  doing  business  of  such  company 
or  corporation  in  this  territory,  which  entry  and  service  shall  amount  to  and  be 
considered  a  seizure  of  said  corporate  interest  or  shares,  to  all  intents  and  pur- 
poses, and  imder  an  execution  issued  on  such  attachment,  may  be  sold  as  in  other 
cases  of  ordinary  execution. 

§  19G2.  — Any  transfer  by  the  defendant  of  the  stock  or  interest  so  attached 
after  the  levy  of  such  attachment,  shall  be  void,  and  when  an  execution  is  issued 
the  said  stock  or  interest  shall  be  sold  by  the  sheriff  or  his  deputy,  according  to 
the  existing  provisions  of  law  in  this  territory  in  regard  to  the  sale  of  personal 
property  under  attachment. 

§  1963. — Certificates  of  purchase  shall  be  granted  by  the  officer  selling,  which, 
on  presentation  to  the  proper  officer  of  the  company  or  corporation,  shall  author- 
ize a  transfer  of  the  stock  to  the  purchaser,  and  it  shall  be  his  duty  to  make  such 
transfer  on  the  proper  books  of  the  corporation  or  company,  if  necessary;  and 
afford  the  purchaser  such  evidence  of  title  to  the  stock  purchased  as  is  usual  and 
necessary  with  other  stockholders. 


634  NEW   YORK. 

§  1964. — From  the  time  of  issuing  the  order  of  attachment,  the  court  shall  be 
deemed  to  have  acquired  jm-isdiction  and  to  have  control  of  all  subsequent  pro- 
ceedings in  relation  thereto;  and  if  after  the  issuing  of  the  order,  the  defendant, 
being  a  person,  should  die,  or  a  corporation,  and  its  charter  should  ex^jtre  by  limit- 
ation, forfeiture  or  otherwise,  the  j^roceedings  shall  be  carried  on,  but  in  all  such 
cases  other  than  where  the  defendant  was  a  foreign  corporation,  his  legal  repre- 
sentatives shall  be  made  parties  to  the  action. 

§  1965. — The  defendant  may  at  any  time  before  judgment,  after  reasonable 
notice  to  the  plaintiff,  move  the  comrt  for  additional  secm-ity  on  the  part  of  the 
plaintiff,  and  if  on  such  motion  the  court  is  satisfied  that  the  surety  in  the  plaint- 
iff's  undertaking  has  removed  from  this  territory,  or  is  not  sufficient  for  the 
amount  thereof,  it  may  vacate  the  order  of  attachment  and  direct  restitution  of 
any  property  taken  under  it,  unless  in  a  reasonable  time  to  be  fixed  by  court, 
sufficient  secm-ity  is  given  by  the  plaintiif. 


Before  justices  of  the  peace — Sees.  2372-2389. 

Shares  of  stock,  attachment  and  sale  of — Sees.  227.  228. 

May  be  served  on  Sunday — Sees.  933,  936. 

Exemptions — Sees.  1243-1245, 1533. 

Clerk  of  probate  court  may  issue — Sec.  1855. 

On.  officer's  return  7wn  est  inventus,  attachment  may  issue  — Sec  1904. 


NEW  YORK. 

[Code  or  Civil  Procedure^  1883.] 


CHAPTER  7. 


CASES  WHERE  A  WAEEANT   OF  ATTACHMENT    MAT    BE    GRANTED,    AND  PROCEEDINGS 
UPON  GRANTING  THE  SAME. 

§  635. — A  warrant  of  attachment  against  the  property  of  one  or  more  defendants 
in  an  action,  may  be  granted  upon  the  ajipLication  of  the  lalaiatiff,  as  specified  in 
the  next  section,  where  tlie  action  is  to  recover  a  sum  of  money  onlj',  as  damages 
for  one  or  more  of  the  following  causes: 

1.  Breach  of  contract,  express  or  implied,  other  than  a  contract  to  marry. 

2.  Wrongful  conversion  of  personal  property. 

3.  Any  other  injury  to  personal  property,  in  consequence  of  negligence,  fraud, 
or  other  wrongful  act. 

§  636. — To  entitle  the  plaintiff  to  such  a  warrant,  he  must  show,  by  affidavit,  to 
the  satisfaction  of  the  jiidge  granting  the  same,  as  follows: 

1.  That  one  of  the  causes  of  action  specified  in  the  last  section  exists  against 
the  defendant.  If  the  action  is  to  recover  damages  for  breach  of  a  contract,  the 
affidavit  must  show  that  the  plaintiff  is  entitled  to  recover  a  simi  stated  therein, 
over  and  above  all  counter-claims  known  to  him. 

2.  That  the  defendant  is  either  a  foreign  corporation  or  not  a  resident  of  the 
state;  or,  if  he  is  a  natural  person  and  a  resident  of  the  state,  that  he  has  departed 
therefrom,  with  intent  to  defraud  his  creditors,  or  to  avoid  the  service  of  a  sum- 
mons, or  keeps  himse-f  concealed  therein  with  the  like  intent;  or,  if  the  defendant 
is  a  natural  jDerson  or  a  domestic  corporation,  that  he  or  it  has  removed,  or  is  about 
to  remove,  property  from  the  state,  with  intent  to  defraud  his  or  its  creditors;  or 
has  assigned,  disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  of,  or  secrete 
property,  with  the  like  intent. 

§  637.— A  warrant  of  attachment,  against  the  property  of  one  or  more  defendants 
in  an  action,  may  also  lie  granted,  upon  the  application  of  the  plaintiff,  where  the 
complaint  demands  judgment  for  a  sum  of  money  only;  and  it  appears,  by  affida- 


NEW   YORK.  635 

vit,  that  the  action  is  brought  to  recover  money,  funds,  credits,  or  other  property, 
held  or  owned  by  the  state,  or  held  or  owned,  officially  or  otherwise,  for  or  in  be- 
half of  a  imblic  or  governmental  interest,  by  a  municipal  or  other  puljlic  corpora- 
tion, board,  officer,  custodian,  agency,  or  agent,  of  the  state,  or  of  a  city,  county, 
town,  village,  or  other  division,  subdivision,  department,  or  portion  of  the  state, 
which  the  defendant  has,  without  right,  obtained,  received,  converted,  or  disposed 
of;  or  in  the  olitaining,  reception,  payment,  conversion,  or  disjiosition  of  which, 
without  right,  he  has  aided  or  abetted;  or  to  recover  damages  for  so  obtaining, 
receiving,  paying,  converting,  or  disposing  of  the  same,  or  the  aiding  or  abetting 
thereof.  In  order  to  entitle  the  plaintiff  to  a  warrant  of  attachment,  in  a  case 
specified  in  this  section,  he  must  show,  by  affidavit,  to  the  satisfaction  of  the  judge 
granting  it,  that  a  sufficient  cause  of  action  exists  against  the  defendant  for  a  sum 
stated  in  the  affidavit. 

§  G38. — The  warrant  may  be  granted  by  a  judge  of  the  court,  or  by  any  county 
judge,  to  accompany  the  summons,  or  at  any  time  after  the  commencement  of  the 
action,  and  before  final  judgment  therein.  Personal  service  of  the  summons  must 
be  made  upon  the  defendant,  against  whose  property  the  warrant  is  granted, 
within  thirty  days  after  the  granting  thereof;  or  else,  before  the  exi^iration  of  the 
same  time,  service  of  the  summons  by  publication  must  be  commenced,  or  service 
thereof  must  be  made  without  the  state,  pursuant  to  an  order  obtained  therefor, 
as  prescribed  in  this  act;  and  if  ijublication  has  been,  or  is  thereafter  commenced, 
the  service  must  be  made  comi^lete,  by  the  continuance  thereof. 

§  G39. — The  plaintiff  procuring  the  warrant  must,  within  ten  days  after  the 
granting  thereof,  cause  the  affidavits,  upon  which  it  was  granted,  to  be  filed  in  the 
office  of  the  clerk. 

§  640. — The  judge,  before  granting  the  warrant,  must  require  a  written  under- 
taking, on  the  part  of  the  plaintiff,  with  sufficient  sureties,  to  the  effect,  that  if 
the  defendant  recovers  judgment,  or  if  the  warrant  is  vacated,  the  plaintiff  will  pay 
all  costs  which  may  be  awarded  to  the  defendant,  and  all  damages,  which  he  may 
sustain  by  reason  of  the  attachment,  not  exceeding  the  sum  specified  in  the  under- 
taking, which  must  be  at  least  two  hundred  and  fifty  dollars.  But  this  section 
does  not  apply  to  a  case,  where  the  action  is  brought  for  a  cause  specified  in  section 
637  of  this  act,  or  where  it  is  specially  prescribed  by  law  that  secm-ity  may  be  dis- 
pensed with,  or  where  the  security  to  be  given  is  specially  regulated  by  law. 

§  641. — The  warrant  must  be  subscribed  by  the  judge  and  the  plaintiff's  at- 
torney, and  must  briefly  recite  the  ground  of  the  attachment.  It  maybe  directed, 
either  to  the  sheriff  of  a  particular  county,  or,  generally,  to  the  sheriff  of  any 
county.  It  must  require  the  sheriff  to  attach  and  safely  keep  so  much  of  the 
property,  within  his  county,  which  the  defendant  has,  or  which  he  may  have  at 
any  time  before  final  judgment  in  the  action,  as  will  satisfy  the  plaintiff's  demand, 
with  costs  and  expenses.  The  amount  of  the  plaintiff's  demand  must  be  specified 
in  the  warrant,  as  stated  in  the  affidavit.  Warrants  may  be  issued  at  the  same 
time,  to  sheriffs  of  different  counties. 

§  642. — It  is  not  a  defense  to  an  action  upon  an  undertaking,  given  upon  grant- 
ing a  warrant  of  attachment,  that  the  warrant  was  granted  improperly,  for  want 
of  jurisdiction,  or  for  any  other  cause. 

EXECUTING  THE  WARRANT,   PENDING  THE  ACTION. 

§  643.— [Section  643  was  stricken  out  in  1877.] 

§  644. — The  sheriff  must  immediately  execute  the  warrant,  by  levying  upon  so 
much  of  the  riersonal  and  real  property  of  the  defendant,^  within  his  county,  not 
exempt  from  levy  and  sale  by  virtue  of  an  execution,  as  will  satisfy  the  plaintiff's 
demand,  with  the  costs  and  expenses.  He  must  take  into  his  custody  all  books  of 
account,  vouchers,  and  other  x^apers,  relating  to  the  personal  property  attached, 
and  all  evidences  of  the  defendant's  title  to  the  real  property  attached,  which 
ho  must  safely  keep,  to  be  dis^Dosed  of,  as  prescribed  in  this  title.  _  The  sheriff, 
to  whom  a  warrant  of  attachment  is  delivered,  may  levy,  from  time  to  time, 
and  as  often  as  is  necessary,  until  the  amount,  for  which  it  was  issued,  has  been 
secured,  or  final  judgment  has  been  rendered  in  the  action,  notwithstanding  the 
expiration  of  his  term  of  office. 

§  64-5. — The  real  property,  which  may  be  levied  upon  by  virtue  of  a  -warrant  of 
attachment,  includes  any  interest  in  real  property,  either  vested  or  not  vested, 
which  is  callable  of  being  aliened  by  the  defendant. 

§  646. — Under  a  warrant  of  attachment  against  a  foreign  corporation,  other 
than  a  corporation  created  by  or  under  the  laws  of  the  United  States,  the  sheriff 


636  NEW   YORK. 

may  levy  upon  tlie  sum  remaining  unpaid  upon  a  subscription  to  the  capital  stock 
of  the  corporation,  made  by  a  person  within  the  county;  or  upon  one  or  more 
shares  of  stock  therein,  held  by  such  a  person,  or  transferred  by  him,  for  the  pur- 
pose of  avoiding  pajonent  thereof. 

§  G47. — The  rights  or  shares  which  the  defendant  has  in  the  stock  of  an  asso- 
nation  or  corporation,  together  with  the  interest  and  profits  thereon,  may  be 
levied  upon;  and  the  sheriff's  certificate  of  the  sale  thereof  entitles  the  purchaser 
to  tlie  same  rights  and  privileges,  with  respect  thereto,  which  the  defendant  had, 
when  they  were  so  attached. 

§  G48. — The  attachment  may  also  be  levied  upon  a  cause  of  action  arising  upon 
contract;  including  a  bond,  promissory  note,  or  other  instrument  for  the  paj^nent 
of  money  only,  negotiable  or  otherwise,  whether  past  due,  or  yet  to  become  due, 
executed  liy  a  foreign  or  domestic  government,  state,  county,  public  oflicer,  asso- 
ciation, municipal  or  other  corporation,  or  by  a  private  pe  son,  either  within  or 
without  the  state;  v.-hich  belongs  to  the  defendant,  and  is  found  within  the  county. 
The  levy  of  the  attachment  thereupon  is  deemed  a  levy  upon,  and  a  seizure  and 
attachment  of,  the  debt  represented  thereby. 

§  649. — A  levy  under  a  warrant  of  attachment  must  be  made  as  follows: 

1.  Upon  real  property,  by  filing  ■«'ith  the  clerk  of  the  county,  where  it  is  situ- 
ated, a  notice  of  the  attachment,  stating  the  names  of  the  parties  to  the  action,  the 
amount  cf  the  plaintiff's  claim,  as  stated  in  the  warrant,  and  a  description  of  the 
particular  property  levied  upon.  The  notice  must  be  subscribed  by  the  plaintiff's 
attorney,  addinghis  office  address;  and  must  be  recorded  and  indexed  Ijy  the  clerk, 
in  the  same  book,  in  like  manner,  and  with  like  effect,  as  a  notice  of  the  pendency 
of  an  action. 

2.  Upon  personal  property,  capable  of  n[ianual  delivery,  including  a  bond,  prom- 
issory note,  or  other  instrument  for  the  payment  of  money,  by  taking  the  same 
into  the  .sheriff's  actual  custody.  He  must  thereupon,  without  delay,  deliver  to 
the  i^erson  from  whose  possession  the-  property  is  taken,  if  any,  a  copy  of  the  war- 
rant, and  of  the  afSdavits  iipon  which  it  was  granted. 

3.  Upon  other  personal  property,  by  leaving  a  certified  copy  of  the  warrant, 
and  a  notice  showing  the  property  attached,  with  the  person  holding  the  same;  or, 
if  it  consists  of  a  demand,  other  than  as  specified  in  the  last  .subdivision,  with  the 
person  against  whom  it  exists;  or,  if  it  consists  of  a  right  or  share  in  the  .stock  of 
an  association  or  corporation,  or  interest  or  profits  thereon,  with  the  president  or 
other  head  of  the  association  or  corporation,  or  the  secretary,  cashier,  or  managing 
agent  thereof.     [Thus  amended  by  L.  1879,  ch.  542.] 

§  GoO. — Upon  the  application  of  a  sheriff,  holding  a  warrant  of  attachment,  the 
president  or  other  head  of  an  association  or  corporation,  or  the  secretary,  cashier, 
or  managing  agent  thereof,  or  a  debtor  of  the  defendant,  or  a  person  holding  prop- 
erty, including  a  bond,  i^romissory  note,  or  other  instrument  for  the  payment  of 
money,  belonging  to  the  defendant,  must  furnish  to  the  sheriff  a  certificate,  under 
bis  hand,  specifying  the  rights  or  number  of  shares  of  the  defendant,  in  the  stock 
of  the  association  or  corporation,  with  all  dividends  declared,  or  incumbrances 
thereon;  or  the  amoimt,  natiu-e,  and  description  of  the  property,  held  for  the  ben- 
efit of  the  defendant,  or  of  the  defendant's  interest  in  property  so  held,  or  of  the 
debt  or  demand  owing  to  the  defendant,  as  the  case  requires. 

§  C51. — If  a  person,  to  whom  api^lication  is  made,  as  prescribed  in  the  last  sec- 
tion, refuses  to  give  such  a  certificate;  or  if  it  is  made  to  appear,  by  affidavit,  to 
the  satisfaction  of  the  court,  or  a  judge  thereof,  or  the  county  judge  of  the  county 
to  which  the  warrant  is  issued,  that  there  is  reason  to  suspect  that  a  certificate 
given  by  him  is  untrue,  or  that  it  fails  fully  to  set  forth  the  facts,  required  to  be 
shown  thereby;  the  com-t  or  judge  may  make  an  order,  directing  him  to  attend,  at 
a  specified  time,  and  at  a  place  within  the  county  to  which  the  warrant  i?  issued, 
and  submit  to  an  examination  under  oath,  concerning  the  same.  The  order  may, 
in  the  discretion  of  the  coiu-t  or  judge,  direct  an  appearance  before  a  referee  named 
therein. 

§  052. — Except  as  otherwise  prescribed  in  the  next  section,  the  owner  or  master 
of  a  vessel,  on  board  of  which  goods  of  a  defendant,  against  whom  a  warrant  of 
attachment  is  issued,  have  been  shii:)ped  for  transportation,  without  reshipment 
or  transshipment  in  the  state,  to  a  port  or  place  without  the  state,  may  transport 
and  deliver  them  according  to  their  destination,  notwithstanding  the  wan-ant; 
unless  the  plaintiff,  his  agent  or  attorney,  executes  to  the  owner  or  master  of  the 
vessel,  a  written  undertaking,  with  sufficient  sm-eties,  in  a  sum  specified  therein, 
to  pay  him  all  expenses,  damages,  and  charges,  which  may  be  incurred  by  him,  or 
to  which  he  may  be  subjected,  for  unlading  the  goods  from  the  vessel,  and  for  all 


NEW   YORK.  G37 

necessary  detention  of  the^  vessel,  for  that  purpose.  The  tmderta'cing-  must  be 
approved,  witli  resjsect  to  its  form,  the  sum  specified  therein,  and  the  sufBciency 
of  the  sureties,  by  a  judge  of  the  court,  or  the  county  judge  of  the  county  wherein 
the  vessel  is  situated,  or,  in  the  city  and  county  of  New  York,  by  a  judge  of  a, 
superior  city  court  ^vithin  that  city  and  county. 

§  65.3. — The  la-st  section  does  not  apply,  -where  the  owner  or  master,  before  the 
shipment  of  the  goods,  had  actual  information  of  the  granting  of  the  warrant,  or 
where  he  has,  in  anj'wise,  connived  at,  or  been  privy  to,  the  shipment  thereof,  for 
the  purjiose  of  screening  them  from  legal  process,  or  of  hindering,  delaying,  or 
defrauding  creditors. 

§  654. — The  sheriff  must,  immediately  after  levying  under  a  warrant  of  attach- 
ment, make,  with  the  assistance  of  two  disinterested  freeholders,  a  description  of 
the  real  property,  and  a  just  and  true  inventory  of  the  personal  property,  iipoa 
which  it  was  levied,  and  of  the  books,  vouchers,  and  other  papers  taken  into  his 
custody,  stating  therein  the  estimated  value  of  each  parcel  of  real  property  at- 
tached, or  of  the  interest  of  the  defendant  therein,  and  of  each  article  of  personal 
property,  enumerating  such  of  the  latter  as  are  perishable.  The  inventory  must 
be  signed  by  the  sheriif  and  the  appraisers;  and  must,  within  five  days  after  the 
levy,  be  filed  in  the  office  of  the  clerk  of  the  county,  where  the  property  is  attached. 

§  655. — The  sheriff  must,  subject  to  the  direction  of  the  court  or  judge,  collect 
and  receive  all  debts,  effects,  and  things  in  action,  attached  by  him.  He  may 
maintain  any  action  or  special  proceeding,  in  his  own  name,  or  in  the  name  of  the 
defendant,  which  is  necessary,  for  that  puqiose,  or  to  reduce  to  his  actual  pos- 
session an  article  of  personal  property,  capable  of  manual  delivery,  but  of  which 
he  has  been  unable  to  obtain  iDossession.  And  he  may  discontinue  such  an  action  or 
special  proceeding,  at  such  time  and  on  such  terms,  as  the  court  or  judge  directs. 

§  65G. — If  property  attached,  other  than  a  vessel,  is  perishable,  the  court  oi 
judge  may,  by  an  order  made  v.'l'di  or  Y\'ithout  notice,  as  the  urgency  of  the  case 
in  its  or  his  opinion  requires,  direct  the  sheriff  to  sell  it  at  public  auction,  and 
thereupon  the  sheriff  must  sell  it  accordingly.  If  it  consists  of  live  animals,  the 
same  proceedings  may  be  had,  but  such  notice  sliall  be  given  to  the  parties  to  the 
action,  of  the  application  for  the  order,  as  the  court  or  judge  prescribes.  The  order 
directing  the  sale  must  prescribe  the  time  and  place  of  the  sale,  and  notice  thereof 
must  be  given  in  such  manner,  and  for  such  time,  as  is  prescribed  in  the  order. 
The  sheriff  must  retain  in  his  hands  the  proceeds  of  the  sale,  after  deducting  his 
erpenses  as  allowed  by  the  com-t  or  judge. 

§  657. — If  goods  or  effects,  other  than  a  vessel,  attached  as  the  property  of  the 
defendant,  are  claimed  by  or  in  behalf  of  another  person,  as  his  property,  the  sheriif 
may,  in  his  discretion,  impannel  a  jury  to  try  the  validity  of  the  claim. 

§  658. — If,  by  their  inquisition,  the  jury  find  the  property  of  the  goods  or  effects 
to  have  been  in  the  claimant,  at  the  time  of  the  levy,  the  sheriff  must  forthwith 
deliver  them  to  him  or  his  agent;  unless  the  plaintiff  gives  an  imdertaking,  with 
sufficient  sm-eties,  to  indemnify  the  sheriff  for  the  detention  thereof.  If  the  under- 
taking is  given,  the  sheriff  must  detain  the  goods  or  effects,  as  the  property  of  the 
defendant. 

§659. — If  the  property  is  found  to  be  in  the  defendant,  the  finding  does  not 
prejudice  the  light  of  the  claimant  to  bring  an  action  to  recover  the  goods  or  effects, 
or  the  value  thereof. 

§  660. — Where  a  vessel,  belonging  to  a  port  or  place  in  the  United  States,  or  a 
share  or  interest  therein,  is  attached,  the  court  or  judge,  on  the  application,  within 
thirty  days  thereafter,  of  a  person  claiming  title  thereto,  or  of  his  agent,  must 
appoint  three  indifferent  persons  to  make  a  valuation  thereof. 

§  661. — A  valuation  of  a  vessel,  or  of  a  share  or  interest  therein,  made  as  pre- 
scribed in  this  article,  must  be  in  writing,  and  subscribed  by  the  appraisers;  each 
of  whom  must  take  and  subscribe  an  affidavit,  annexed  thereto,  to  the  effect,  that 
the  valuation  is,  in  all  respects,  just  and  fair,  and  that  the  value  of  th?  voFsel, 
share,  or  interest,  is  truly  stated  therein,  according  to  the  deponent's  bell^J.  The 
valuation  must  be  immediately  returned  to  the  court  or  judge;  and,  after  an  un- 
dertaking is  given,  or  after  the  expiration  of  the  time  to  give  an  undertaking,  as 
prescribed  in  the  next  section,  it  must  be  delivered  to  the  sheriff. 

§  662. — Within  two  days  after  the  valuation  is  returned,  the  claimant  or  his 
agent  may  execute  an  undertaking  to  the  sheriff,  with  sufficient  sureties,  approved 
by  the  court  or  judge,  who  must  justify  in  twice  the  appraised  value,  to  the  effect, 
that,  in  an  action  to  be  brought  on  tlie  undertaking,  the  claimant  wiU.  establish. 


638  NEW  YORK. 

that  he  "was  the  owner  of  the  vessel,  share,  or  interest,  at  the  time  of  the  levy  there- 
upon; and  that  in  case  of  his  failure  to  do  so,  he  will  pay  the  amount  of  the  valu- 
ation, with  interest  from  the  date  of  the  xindertaking,  to  the  sheriff;  or,  if  the  war- 
rant is  vacated  or  annulled,  to  the  defendant  or  his  jjersonal  representative. 

§  G63. — Upon  such  an  undertaking  being  executed  and  delivered  to  the  sheriff, 
the  court  or  judge  must  make  an  order,  directing  the  vessel  or  share  to  be  dis- 
charged from  the  attachment.  Thereupon  the  sheriff  must  discharge  the  same 
accordingly. 

§  664. — The  court  or  judge  may,  upon  the  application  of  either  party,  at  any 
time  before  the  warrant  is  vacated  or  annulled,  direct  the  sheriff  to  commence  an 
action  upon  the  undertaking,  upon  such  terms  and  conditions,  and  under  such  reg- 
ulations, between  him  and  the  applicant,  as  it  or  he  deems  just.  And  if  the  war- 
rant of  attachment  is  vacated  or  annulled,  the  defendant  in  the  attachment,  his 
assignee  or  personal  representative,  may  commence  and  maintain  an  action  upon 
the  undertaking,  or  may  be  substituted,  in  place  of  the  sheriff,  in  an  action  pend- 
ing thereupon. 

§  665. — In  such  an  action,  the  claimant  may  show,  in  bar  of  a  recovery,  that 
he  was  the  owner  of  the  vessel,  share,  or  interest,  at  the  time  when  it  was  attached. 
If  judgment  passes  against  him,  the  plaintiff  is  entitled  to  recover  the  amount  of 
the  valuation,  with  interest  from  the  date  of  the  undertaking. 

§  666. — Where  a  foreign  vessel,  or  a  share  or  interest  therein,  is  attached,  it 
must  be  valued,  as  prescribed  in  sections  660  and  661  of  this  act,  upon  the  applica- 
tion of  a  person,  who  makes  affidavit,  to  the  effect  that  he  is  the  owner  thereof,  or 
that  he  is  the  agent  of  a  person,  naming  him  and  his  residence,  whom  he  believes 
to  be  the  owner  of  the  vessel,  share,  or  interest  attached. 

§  667. — Such  notice  of  the  application  must  be  given  to  the  plaintiff,  as  the 
court  or  judge  deems  reasonable. 

§  668.  — Within  three  days  after  the  valuation  is  returned,  the  plaintiff  must 
give,  to  the  i^erson  in  whose  behalf  the  claim'is  made,  an  undertaking,  with  suffi- 
cient sureties,  approved  by  the  coiui;  or  judge,  who  must  justify  in  t\vice  the  ap- 
praised value,  to  the  effect  that  they  will  pay  such  damages  as  may  be  recovered 
for  seizing  the  vessel,  share,  or  interest,  in  an  action  brought  against  the  sheriff,  or 
the  plaintiff  in  the  attachment,  within  three  months  from  the  approval  of  the  un- 
dertaking, if  it  appears  therein  that  the  vessel,  share,  or  interest  belonged,  at  the 
time  of  attaching  it,  to  the  f)erson  in  whose  behalf  the  claim  is  made. 

§  669. — Unless  such  an  undertaking  is  given,  the  court  or  judge  must  grant  an 
order  discharging  the  vessel,  share,  or  interest  so  claimed,  from  the  attachment; 
whereupon  the  sheriff  must  discharge  the  same  accordingly. 

§  670. — If,  after  such  an  undertaking  is  given  by  the  plaintiff,  the  warrant  is 
vacated  or  annulled,  or  the  attachment  is  discharged  as  to  the  vessel,  share,  or 
interest,  the  defendant  or  his  agent  is  entitled  to  claim  the  same,  or  the  proceeds 
thereof,  if  it  has  been  sold,  only  upon  his  showing,  to  the  satisfaction  of  the  court 
or  judge,  that  the  undertaking  has  been  discharged;  or  giving  to  the  plaintiff  an 
undertaking,  ■with  sufficient  sureties,  approved  Ijy  the  court  or  judge,  who  must 
justify  in  twice  the  appraised  value,  to  the  effect,  that  they  will  indemnify  the 
plaintiff  against  all  charges  and  expenses,  in  consequence  of  the  undertaking. 

§  671. — If  the  undertaking  of  the  plaintiff  is  not  discharged,  or  he  is  not  indem- 
nified, as  prescribed  in  this  article,  within  one  month  after  the  defendant  becomes 
entitled  to  claim  the  vessel,  share,  or  interest,  as  so  prescribed,  it  may  be  sold  by 
the  sheriff,  in  whose  custody  it  is,  upon  an  order  of  the  court  or  judge;  and  the 
proceeds  of  the  sale  must  be  paid  to  the  persons  who  executed  the  undertaking,  for 
their  indemnity. 

§  672. — If  a  claim  is  not  made,  by  or  in  behalf  of  an  owner  of  a  domestic  vessel, 
or  of  a  share  or  interest  therein,  within  thirty  days  after  it  is  attached,  or  if  the 
projier  undertaking  is  not  executed  by  the  claimant;  or  if  a  claim  is  not  made, 
within  that  time,  by  or  in  behalf  of  the  owner  of  a  foreign  vessel,  or  of  a  share  or 
interest  therein;  the  vessel,  share,  or  interest,  may  be  sold  by  the  sheriff,  under  an 
order  of  the  court  or  judge,  upon  the  application  of  the  plaiatiff,  if,  in  the  opinion 
of  the  court  or  judge,  a  sale  is  necessary. 

§  673. — -Where  a  share  or  interest  in  a  vessel,  foreign  or  domestic,  is  attached, 
if  the  proper  claim  to  it  is  not  made,  by  or  in  behalf  of  an  owner  thereof,  within 
thirty  days  thereafter,  it  may  be  sold  by  the  sheriff,  under  an  order  of  the  court  or 
judge,  upon  the  application  of  a  joint  owner,  or  his  agent. 


NEW   YORK.  639 

§  C74.— The  sheriif  must  keep  the  property  attached  by  him,  or  the  proceeds  of 
property  sold,  or  of  a  demand  collected  by  him,  to  answer  any  judgment  that  may 
DC  obtained  against  the  defendant  in  the  action. 

§  G75.— But  the  court,  upon  the  application  of  either  party  to  the  action,  may 
direct  the  sheriff,  either  before  or  after  the  expiration  of  his  term  of  ofHce,  to  pay 
into  court  the  proceeds  of  a  demand  collected,  or  property  sold;  or  to  deposit  them 
in  a  designated  bank  or  trust  company,  to  be  drawn  out  only  ui^on  the  order  of 
the  court. 

§  G76.— Where  the  proceeds  of  the  property  sold,  and  of  the  demands  collected 
by  the  sheriff,  exceed  the  amount  of  the  plaintiff's  demand,  with  the  costs  and  ex- 
penses, and  of  all  other  warrants  of  attachment  or  executions  in  the  sheriff's  hands, 
chargeable  upon  the  same;  the  court,  or  the  judge  who  granted  the  warrant,  upon 
the  ajiJi^lication  of  the  defendant,  or  of  an  assignee  of,  or  purchaser  from  the  de- 
fendant, and  ujion  notice  to  the  plaintiff,  and  the  plaintiffs  in  the  other  warrants 
or  executions,  may,  at  any  time  during  the  pendency  of  the  action,  make  an  order, 
directing  the  sheriff  to  pay  over  the  surplus  to  the  applicant,  and  to  release  from 
the  attachment  the  remaining  real  and  personal  property  attached. 

§  G77. — The  plaintiff,  by  leave  of  the  court  or  judge,  procured  as  prescribed  in 
the  next  section,  may  bring  and  maintain,  in  the  name  of  himself  and  the  sheriff 
jointly,  by  his  own  attorney,  and  at  his  own  expense,  any  action  which,  by  the 
provisions  of  this  title,  may  be  brought  by  the  sheriff,  to  recover  property  attached, 
or  the  value  thereof,  or  a  demand  attached,  or  upon  an  undertaking  given  as  pre- 
scribed in  this  title,  Ijy  a  person  other  than  the  plaintiff.  The  sheriff  must  receive 
the  proceeds  of  such  an  action,  but  he  is  not  liable  for  the  costs  or  expenses 
thereof.  Costs  may  be  awarded,  in  such  an  action,  against  the  i^laintiff  in  the 
warrant,  but  not  against  the  sheriff. 

§  678. — The  coiui;  or  judge  must  grant  leave  to  bring  such  an  action,  where  it 
appears  that  due  notice  of  the  application  therefor  has  been  given  to  the  sheriff; 
but,  before  doing  so,  the  court  or  judge  may  require  that  notice  of  the  application 
be  given  to  the  x^laintiff  in  any  other  warrant  against  the  same  defendant.  And 
such  terms,  conditions,  and  regulations  may  be  imposed,  in  the  order  granting 
leave,  as  the  com-t  or  judge  thinks  proper,  for  the  due  protection  of  the  rights  and 
interests  of  all  persons,  interested  in  the  distribution  of  the  proceeds  of  the  action. 

§079. — Leave  may,  in  like  manner  and  with  like  effect,  be  granted  to  the 
plaintiff  in  the  warrant,  to  be  joined  with  the  sheriff,  in  an  action  brought  by  the 
sheriff,  in  a  case  where  he  might  have  procured  leave  to  bring  the  action,  as  pre- 
scribed in  the  last  two  sections.  Upon  an  application  therefor,  the  court  or  judge 
may,  in  a  proper  case,  require  the  plaintiff  to  provide  for  the  expenses  in  the  action, 
already  incurred  by  the  sheriff.  The  application  must  be  denied,  in  case  of  an 
unreasonable  delay  in  making  it;  or  where  an  application  was  made,  before  the 
action  was  brought,  and  the  plaintiff  neglected  or  refused,  without  a  good  excuse 
therefor,  to  comply  with  the  terms,  conditions  or  regulations,  then  imposed. 

§  G80.— The  coiu't  or  judge  may,  upon  the  application  of  the  sheriff,  or  of  the 
defendant  in  the  warrant,  during  the  pendency  of  an  action,  brought  as  i)rescribed 
in  the  last  three  sections,  direct  as  to  the  conduct,  discontinuance,  or  settlement  of 
the  same,  and  as  to  the  application  or  disposition  of  the  money  or  property  recov- 
ered therein,  as  justice  requires. 

§  G81. — Upon  the  application  of  either  party,  and  proof  of  the  neglect  of  the 
sheriff,  the  court  or  judge  may,  by  order,  require  the  sheriff  to  return  an  inventory. 
Disobedience  to  such  an  order  may  be  ijunished,  as  a  contempt  of  the  coiu-t. 

VACATING   OR  MODIFYING   THE   WARRANT;    DISCHARGING   THE  ATTACHMENT. 

§682.— The  defendant,  or  a  person  who  has  acquired  alien  upon,  or  interest 
in,  his  property,  after  it  was  attached,  may,  at  any  time  before  the  actual  applica- 
tion of  the  attached  property,  or  the  proceeds  thereof,  to  the  payment  of  a  judg- 
ment recovered  in  the  action,  apply  to  vacate  or  modify  the  warrant,  or  to  increase 
the  secm-ity,  given  by  the  jjlaintiff,  or  for  one  or  more  of  those  forms  of  relief, 
together,  or  in  the  alternative. 

§  G83.— An  application,  specified  in  the  last  section,  may  be  founded  only  upon 
the  papers  upon  which  the  warrant  was  granted;  in  which  case,  it  must  be  made 
to  the  court,  or,  if  the  warrant  was  gi-anted  l\y  a  judge  out  of  court,  to  the  same 
judge,  in  court  or  out  of  court,  and  with  or  without  notice,  as  he  deems  proper. 
Or  it  may  bo  founded  upon  proof,  by  affidavit,  on  the  part  of  the  defendant;  in 
■which  case,  it  must  be  made  to  the  court,  or,  if  the  warrant  was  granted  by  a  judge 
out  of  coiirt,  to  any  judge  of  the  court,  upon  notice;  and  it  may  be  opposed 


640  NEW    YORK. 

by  new  proof,  by  affidavit,  on  the  part  of  tLe  plaintiff,  tending  to  sustain  any 
ground  for  tlie  attachment,  recited  in  the  warrant,  and  no  other,  unless  the  de- 
fendant relies  uj^on  a  discharge  in  bankruptcy,  or  upon  a  discharge  or  exoneration, 
granted  in  insolvent  proceedings;  in  which  case,  the  plaintiff  may  show  any 
matter,  in  avoidance  thereof,  which  he  might  show  upon  the  trial. 

§  G84  and  §  085.— [Stricken  out  in  1877.] 

§  686. — The  denial  of  such  an  application  does  not  prejudice  a  suTisequent  ap- 
plication, seasonably  made,  founded  upon  the  failiu^e  of  a  complaint  which  had 
not  been  filed  or  served  at  the  time  of  the  former  application,  to  set  forth  any  of 
the  causes  of  action  mentioned  in  section  635  and  section  6-37  of  this  act. 

§  C87. — The  defendant  may,  at  anytime  after  he  has  appeared  in  the  action, 
and  Ijefore  final  jud.gment,  apply  to  the  judge  who  granted  the  warrant,  or  to  the 
court,  for  an  order  to  discharge  the  attachment,  as  to  the  whole  or  a  part  of  the 
property  attached. 

_  §  688. — Upon  such  an  application,  the  defendant  must  give  an  undertaking, 
with  at  least  two  sufficient  siu-eties,  to  the  effect  that  he  will,  on  demand,  pay  to 
the  plaintiff  the  amount  of  any  judgment  which  may  be  recovered  in  the  action 
against  him,  not  exceeding  a  sum  specified  in  the  undertaldng,  with  interest.  The 
sum  so  specified  must  be  at  least  equal  to  the  amount  of  the  plaintiff'.';  demand,  as 
specified  in  his  affidavit;  or,  at  the  of)tion  of  the  defendant,  equal  to  the  appraised 
value,  according  to  the  inventory,  of  the  property  attached;  or,  if  the  application 
is  to  discharge  the  attachment,  as  to  a  i^art  only  of  the  property  attached,  to  the 
appraised  value  of  that  portion. 

§  089. — Where  there  are  two  or  more  defendants,  and  an  application  is  made 
as  prescribed  in  the  last  two  sections,  by  one  or  more,  but  not  by  all  of  them,  the 
undertaking  must  provide  for  the  payment  of  anj^  judgment,  which  may  be  recov- 
ered a^'ainst  anj^  of  the  defendants  in  the  action,  unless  the  applicant  makes  jsroof, 
by  affidavit,  to  the  satisfaction  of  the  court  or  judge,  that  the  property,  with  respect 
to  which  the  application  is  made,  belongs  to  him  separatelj-;  in  which  case,  the 
undertaking  must  provide  for  the  payment  of  any  judgment,  which  may  be  recov- 
ered in  the  action  against  the  applicant,  either  alone,  or  jointly  with"  any  other 
defendant.  Where  an  application  is  made,  as  prescribed  in  this  section,  at  least 
two  days'  notice  thereof,  with  a  copy  of  the  affidavit,  must  be  served  upon  the 
plaintiff '.s  attorney,  who  may  oppose  the  application  by  proof,  by  affidavit,  that 
one  or  more  of  the  other  defendants  own,  or  have  an  interest  in,  the  property. 

§  690. — An  undertaking,  given  as  prescribed  in  the  last  two  sections,  must  be 
forthwith  filed  with  the  clerk.  A  copy  thereof,  with  a  notice  of  the  filing,  must 
be  forthwith  served  upon  the  plaintiff's  attorney;  who  may,  within  three  days 
thereafter,  give  notice  to  the  sheriff,  that  he  excepts  to  the  sufficiency  of  the  sure- 
ties. Thereupon  the  sureties  must  justifj',  upon  the  like  notice,  and  in  like  man- 
ner, as  bail  upon  an  arrest;  or  a  new  undertaking  must  be  given,  mth  new  sureties, 
who  must  justify  in  like  manner.  If  the  plaintiff  does  not  except,  as  prescribed  in 
this  section,  he  is  deemed  to  have  waived  all  objection  to  the" sureties. 

§  691. — The  sheriff  is  responsible  for  the  sufficiency  of  the  sureties;  and  he  may 
retain  possession  of  the  property  attached,  and  the  proceeds  thereof,  until  the  ob- 
jection to  them  is  waived,  as  prescribed  in  the  last  section,  or  they,  or  the  new 
sureties,  justify. 

§  092. — The  last  five  sections  are  applicable,  where  a  vessel,  or  a  share  or  inter- 
est therein,  is  attached.  If  it  is  necessary,  to  enable  the  defendant  to  discharge 
the  attachment,  the  court  or  judge  may,  by  order,  stay  any  proceeding  specified  in 
article  second  of  this  title,  or  extend  the  time  to  do  any  act  therein  specified. 

§  093.— If  a  warrant  of  attachment  is  levied  upon  the  interest  of  one  or  more 
partners,  in  goods  or  chattels  of  a  partnership,  the  other  partners,  v.-ho  are  not 
defendants  in  the  action,  or  any  of  them,  may,  at  any  time  before  final  judgment, 
apply  to  the  judge  who  granted  the  warrant,  or  to  the  court,  upon  an  affidavit 
showing  the  facts,  for  an  order  to  discharge  the  attachment,  as  to  that  interest. 

§  094. — Upon  such  an  application,  the  applicant  must  give  an  undertaking, 
with  at  least  two  sufficient  s'oreties,  to  the  effect  that  they  will  pay  to  the  sheriff, 
on  demand,  the  amount  of  any  judgment,  which  may  be  recovered  against  the 
partner  who  is  defendant  in  the  action;  or  which  may  be  recovered  against  him,  in 
any  other  action,  wherein  the  other  jiartners  are  not  defendants,  and  wherein  a 
warrant  of  attachment,  or  an  execution,  may  come  to  the  sheriff's  hands,  at  any 
time  before  the  warrant  of  attachment,  which  was  so  levied,  is  vacated  or  an- 
nulled; not  exceeding  a  sum,  specified  in  the  undertaking,  which  must  not  be  lesa 


NEW    YORK.  641 

than  the  value  of  the  interest  of  the  defendant,  in  the  goods  or  chattels  seized,  by- 
virtue  of  the  attachment,  as  fixed  by  the  court  or  judge.  If  the  value,  in  the  opin- 
ion of  the  court  or  judge,  is  uncertain,  the  sum  shall  be  such  as  the  court  or  judge 
determines. 

§  (595. — For  the  purpose  of  fixing  the  sum,  or  determining  the  sufficiency  of  the 
sureties,  the  com-t  or  judge  may  receive  affidavits  or  oral  testimony,  or  may  direct 
a  reference. 

§  696. — The  court  or  judge  may  direct,  that  the  plaintiff  have  notice  of  an  ap- 
plication for  a  discharge  of  property,  as  prescribed  in  this  article,  or  of  the  hearing 
under  an  order  of  reference,  made  as  prescribed  in  the  last  section;  and  if  the  ap- 
plicant does  not  appear,  where  notice  has  been  given,  the  application  m£fy  be  dis- 
missed or  denied. 

BEGULATIONS    WHEKE    THERE    ARE    TWO    OR     MORE     WARRANTS    AGAINST    THE    SAME 

DEFENDANT. 

§  697. — Where  two  or  more  warrants  of  attachment,  against  the  same  defend- 
ant, arb  delivered  to  the  sheriff  of  the  same  county,  to  be  execiited,  their  respective 
preferences,  and  the  rules,  where  a  levy,  or  a  levy  and  sale,  have  been  made  under 
a  junior  warrant,  are  the  same,  as  where  two  or  more  executions,  against  the  jirop- 
erty  of  the  same  defendant,  are  delivered  to  the  sheriff  of  the  same  county,  to  be 
executed. 

§  698. — Where  a  domestic  vessel,  or  share  or  interest  therein,  has  been  attached, 
and  afterward  released,  as  prescribed  in  this  title;  or  where  the  personal  property 
of  a  partnership,  of  which  the  defendant  was  a  member,  has  been  attached,  and 
the  attachment  afterward  discharged,  upon  the  application  of  another  partner,  as 
prescribed  in  this  title;  another  warrant,  against  the  same  defendant,  shall  not  be 
levied  on  the  same  property,  by  the  sheriff  of  the  same  or  of  any  other  county,  un- 
til after  the  first  warrant  has  been  vacated  or  annulled.  But,  except  as  thus  pre- 
scribed, where  a  second  warrant,  against  the  same  defendant,  is  delivered  to  the 
same  sheriff,  he  must  execute  it,  hj  a  levy  ujion  property  within  his  county,  and  he 
must  thereupon  take  the  same  proceedings,  as  if  the  levy  was  made  under  the  first 
warrant. 

§  699  and  §  700.— [Stricken  out  by  the  amendatory  act  of  1877.] 

§  701. — Where  a  foreign  vessel,  or  a  share  or  interest  therein,  has  been  attached 
and  valued,  as  prescribed  in  article  second  of  this  title,  and  the  plaintiff,  in  the 
first  wan-ant  of  attachment,  fails  to  give  an  undertaking  to  prevent  the  release 
thereof,  the  court  or  judge  may  grant  to  the  plaintiff  in  a  second  warrant,  then  in 
the  sheriff's  hands  for  execution,  an  extension,  of  not  more  than  three  days  there- 
after, within  ^^ich  to  furnish  an  undertaking,  in  all  respects  like  the  one  to  be 
furnished  by  the  first  plaintiff.  And  if  he  furnishes  it,  within  that  time,  he  has 
the  same  rights  and  privileges,  and  is  subject  to  the  same  duties  and  liabilities, 
with  respect  to  the  vessel  and  its  proceeds,  and  the  subsequent  proceedings  relating 
thereto,  as  if  his  was  the  first  warrant. 

§  702. — If  a  foreign  vessel,  or  a  shai'e  or  interest  therein,  has  been  attached,  and 
afterward  released,  by  reason  of  the  failure  of  the  plaintiff,  in  the  first  or  the  sec- 
ond warrant,  to  give  an  undertaking  to  prevent  the  release,  it  shall  not  be  again 
attached,  under  a  warrant  against  the  same  defendant,  which  had  been  delivered 
to  the  sheriff  of  the  same  county,  before  the  expiration  of  the  time  within  which 
the  imdertaking  should  have  been  furnished.  But  it  may  be  again  attached,  under 
a  subsequent  warrant  against  the  same  defendant;  in  which  case,  the  plaintiff 
therein,  and  the  plaintiff  in  each  warrant  subsequently  delivered  to  the  sheriff, 
have  the  same  rights  and  privileges,  and  are  subject  to  the  same  duties  and  lia- 
bilities, with  respect  to  the  vessel  and  its  proceeds,  and  the  subsequent  proceed- 
ings relating  thereto,  as  if  the  warrant,  under  which  it  was  attached,  was  the  first 
warrant. 

§  703. — Where  the  plaintiff  in  a  warrant  of  attachment  has  commenced  an  ac- 
tion, in  the  name  of  himself  and  the  sheriff  jointly,  as  i^rescribed  in  this  title,  a 
plaintiff  in  a  junior  warrant  may  apply  to  the  court  or  judge,  to  direct  as  to  the 
conduct,  discontinuance,  or  settlement  of  the  same,  or  to  impose  terms,  conditions, 
and  regulations  as  to  the  continuance  thereof,  in  the  interest  of  the  applicant;  and 
such  order  may  be  made  thereupon,  as  justice  requires.  If  the  first  warrant  is  va- 
cated, or  the  attachment  thereunder  is  released  or  discharged,  without  affecting  the 
cause  of  action  prosecuted  by  the  plaintiff  therein  and  the  sheriff  jointly,  the  plaint- 
iff in  the  warrant  next  in  order,  may,  upon  his  own  application,  be  substituted  as 
joint  plaintiff  with  the  sheriff,  by  an  order,  made  as  upon  an  application  for  leave 
to  bring  such  an  action. 
II  Attacuueni— 16. 


642  NEW   YORK. 

§  704. — A  plaintiff  in  a  second  warrant  may  apply  to  the  court  or  judge,  upon 
notica  to  the  plaintiH  in  the  first  warrant,  and  to  the  sberiii,  for  leave  to  bring  and 
maintain,  in  the  name  of  himself  and  the  sheriff  jointlj',  any  action,  which  might 
Le  brought  in  the  name  of  the  senior  plaintiff  and  the  sheriff.  If  it  appears  that 
the  plaintiff  in  the  first  warrant  neglects  or  refuses  to  be  joined  with  the  sheriff  in 
such  an  action,  or  to  comply  with  the  terms,  conditions,  and  regulations,  imposed, 
either  upon  granting  him  an  order  for  that  purpose,  or  upon  the  hearing  of  an  ap- 
plication, made  as  prescribed  in  this  section,  the  court  or  judge  may  grant  to  the 
plaintiff  in  tlie  second  warrant,  leave  to  bring  and  maintain  such  an  action,  in  the 
name  of  himself  and  the  sheriff  jointly,  with  lilve  effect,  as  if  his  was  the  first 
warrant. 

§  705. — Where  there  are  more  than  two  warrants  of  attachment,  against  the 
same  defendant,  the  plaintiffs  in  the  third  and  each  subsequent  warrant  have,  ac- 
cording to  their  respective  priorities,  the  same  rights  and  privileges,  as  against  the 
plaintiffs  in  all  senior  warrants,  which  the  plaintiff  in  the  second  warrant  has,  as 
i  gainst  the  plaintiff  in  the  first,  and  are  subject  to  the  same  duties  and  liabilities; 
except  that  a  second  extension  of  the  time,  within  which  to  furnish  an  tmdertaking 
to  prevent  the  release  of  a  foreign  vessel,  or  a  share  or  interest  therein,  shall  not  be 
granted.  And  the  plaintiffs  in  two  or  more  j  unior  warrants  of  attachment  may, 
by  agreement  among  themselves,  take  jointly,  and  for  their  common  benefit,  any 
proceeding,  j^ermitted  by  this  title  to  be  taken,  by  the  plaintiff  in  a  second  or  sub- 
sequent Avarrant  of  attachment;  provided  that  it  does  not  interfere  with  the  prefer- 
ential or  other  right  of  an  intermediate  plaintiff. 

PROCEEDINGS   AFTER  JUDGMENT;   EIGHTS  OF  PARTIES   AND  DUTIES   OF  THE   SHERIFF, 
AFTER  THE   WARRANT   IS   VACATED   OR  THE  ATTACHMENT  DISCHARGED. 

§  703. — ^Where  a  levy,  under  a  warrant  of  attachment  in  an  action,  has  been 
made,  an  execution  against  property,  upon  a  final  judgment  in  favor  of  the  plaint- 
i  J  tlierein,  recovered  after  the  expiration  of  the  term  of  office  of  the  sheriff  who 
made  the  levy,  must  nevertheless  be  directed  to  and  executed  by  that  sheriff,  unless 
another  person  is  desigTiated  by  law  to  complete  the  unfinished  business  pertaining 
to  his  office;  or,  in  that  case,  to  the  person  so  designated. 

§  707. — Where  a  defendant,  who  has  not  appeared,  is  a  non-resident  of  the 
state,  or  a  foreign  corporation,  and  the  summons  was  served  without  the  state,  or 
by  a  publication,  pursuant  to  an  order  obtained  for  that  purpose,  as  prescribed  in 
chapter  fifth  of  this  act,  the  judgment  can  be  enforced  only  against  the  property 
which  has  been  levied  upon,  by  virtue  of  the  warrant  of  attachment,  at  the  time 
when  the  judgment  is  entered.  But  this  section  does  not  declare  the  effect  ol  Such 
a  judgment,  with  respect  to  the  apj)lication  of  any  statute  of  limitation. 

§  708. — Where  an  executic.r  against  property  is  issued  upon  a  judgment  for  the 
plaintiff,,  in  an  action  in  whicn  .  warrant  of  attachment  has  been  le^aed,  the  sheriff 
must  satisfj'  it,  as  follows: 

1.  He  must  pay  over  to  the  plaintiff  all  money  attached  by  him,  and  the  pro- 
ceeds of  all  sales  of  perishable  jjroperty,  or  of  any  vessel  or  share  or  interest 
therein,  or  animals,  sold  by  him,  or  of  any  debts,  or  other  things  in  action  col- 
lected  or  sold  by  him;  or  so  much  thereof  as  is  necessary  to  satisfy  the  judgment. 

2.  If  any  balance  remains  due,  he  must  sell,  under  the  execution,  the  other  per- 
sonal  property  attached,  or  so  much  thereof  as  is  necessary;  including  rights  or 
shares  in  the  stock  of  an  association  or  corporation,  or  a  bond  or  other  instrument 
for  the  payment  of  money,  executed  and  issued,  with  the  interest  coupons  an- 
nexed, if  any,  by  a  government,  state,  county,  fjublic  officer,  or  municipal  or  other 
corporation,  which  is  in  terms  negotiable,  or  payable  to  the  bearer  or  holder,  the 
principal  whereof  is  not  then  payable;  but  not  including  any  other  debt  cr  thing  in 
action.  If  the  proceeds  of  that  profierty  are  insufficient  to  satisfy  the  judgment, 
and  the  execution  requires  him  to  satisfy  it  out  of  any  other  personal  property  of 
the  defendant,  he  must  sell  the  f)ersonal  property,  upon  which  he  has  levied  by 
virtue  of  the  execution.  If  the  proceeds  of  the  personal  property,  applicable  to 
the  execution,  are  insufficient  to  satisfy  the  judgment,  the  sheriff  must  sell,  under 
the  execution,  all  the  right,  title,  and  interest  which  the  defendant  had  in  the  real 
property  attached,  at  the  time  when  the  notice  was  filed,  or  at  any  time  afterward, 
before  resorting  to  any  other  real  joroperty. 

3.  If  personal  property  attached,  belonging  to  the  defendant,  has  passed  out  of 
the  hands  of  the  sheriff,  without  having  been  sold  or  converted  into  money,  and 
the  attachment  has  not  been  discharged  as  to  that  property,  he  must,  if  practica- 
ble, regain  possession  thereof;  and,  for  that  pin-pose,  he  has  all  the  authority  which 
he  had,  to  seize  the  same  under  the  warrant.  A  person,  who  willfully  conceals  or 
withholds  such  property  from  him,  is  liable  to  double  damages,  at  the  suit  of  the 
party  aggrieved. 


NEW   YORK.  643 

4.  Until  the  judgment  is  paid,  he  may  collect  the  debts  and  other  things  in 
action  attaclied,  and  prosecute  any  imdertaking  which  he  has  taken  in  the  course 
of  the  proceedings,  and  apply  the  proceeds  thereof  to  the  payment  of  the  judgment. 

5.  At  any  time  after  levying  the  attachment,  the  court,  upon  the  petition  of 
the  plaintiff,  accompanied  with  an  affidavit,  specifying  fully  all  the  proceedings  of 
the  sheriff,  since  the  levy  under  the  warrant,  the  property  attached,  and  the  dispo- 
sition thereof;  and  the  affidavit  of  the  sheriff,  showing  that  he  has  used  diligence, 

n  endeavoring  to  collect  the  debts  and  other  things  in  action  attached,  and  that  a 
portion  thereof  remains  uncollected;  may  direct  the  sheriff  to  sell  the  remaining 
portion,  upon  such  terms,  and  in  such  manner,  as  it  thinks  proper.  Notice  of  the 
application  must  be  given  to  the  defendant's  attorney,  if  the  defendant  appeared  in 
the  action.  If  the  summons  was  not  personally  served  on  the  defendant,  and  he 
did  not  appear,  the  com-t  may  make  such  order  as  to  the  service  of  notice  as  it 
thinks  projjer,  or  may  grant  the  application  without  notice. 

§  709.— Where  a  warrant  of  attachment  is  vacated,  or  annulled,  or  an  attach- 
ment is  discharged,  upon  the  application  of  the  defendant,  the  sheriff  must,  except 
in  a  case  where  it  is  otherwise  specially  prescribed  by  law,  deliver  over  to  the  de- 
fendant, or  to  the  person  entitled  thereto,  upon  reasonable  demand,  and  upon 
payment  of  all  costs,  charges,  and  expenses,  legqjly  chargeable  by  the  sheriff,  all 
the  attached  personal  i^roperty  remaining  in  his  hands,  or  that  portly  n  thereof 
as  to  which  the  attachment  is  discharged;  or  the  proceeds  thereof,  if  it  has  been 
Bold  by  him. 

§  710.— Wliere  the  sheriff  is  required,  by  this  title,  to  deliver  attached  property, 
or  the  nroceeds  thereof,  to  the  defendant,  he  must  also  deliver  to  him,  imless  other- 
wise specially  directed  by  the  court  or  judge,  all  books  of  account,  vouchers,  evi- 
dences of  debt,  muniments  of  title,  or  other  papers,  relating  to  the  property,  either 
real  or  personal,  or  to  its  proceeds;  together  with  all  undertakings,  relating  thereto, 
which  he  has  taken  in  the  course  of  the  proceedings,  and  which  have  not  Ijeen  fully 
satisfied;  except  an  undertaking,  given  by  the  defendant,  upon  the  discharge  of 
property.^  He  must  also  deliver  a  written  assignment,  duly  acknowledged,  of  each 
undertaking,  so  delivered,  and  of  each  other  instrument,  to  which  the  defendant  is 
thus  entitled,  an  assignment  of  which  is  necessary  to  perfect  or  protect  the  defend- 
ant's title  thereto.  The  defendant  must  also,  but  upon  his  own  application  only, 
be  substituted  in  place  of  the  sheriff,  or  the  sheriff  and  the  jilaintiff  jointly,  in  an 
action  brought  as  prescribed  in  this  title;  but  the  court  or  judge  may  impose,  as  a 
condition  of  granting  the  order  of  substitution,  such  terms  as  justice  requires,  with 
respect  to  indemnity  and  payment  of  expenses.  The  defendant's  rights,  with  re- 
spect to  property  attached  and  not  disposed  of,  and  an  undertaking,  or  other  in- 
strument, to  which  he  is  thus  entitled,  are  the  same  as  those  of  the  sheriff,  while 
the  warrant  was  still  in  force,  except  where  his  rights  are  specially  defined  or  regu- 
lated by  law. 

§  711. — At  any  time  after  the  warrant  of  attachment  has  been  vacated  or  an- 
nulled, or  the  attachment  has  been  discharged  as  to  real  property  attached,  the 
court  may,  in  its  discretion,  upon  the  apj^lication  of  any  person  aggrieved,  and 
upon  such  notice  as  it  deems  just,  direct,  that  any  notice,  filed  for  the  purpose  of 
attaching  the  property,  be  canceled  of  record,  by  the  clerk  of  the  county  where  it 
is  filed  and  recorded.  The  cancellation  must  l;)e  made  by  a  note,  to  that  effect,  on 
the  margin  of  the  record,  referring  to  the  order;  and,  unless  the  order  is  entered 
in  the  same  clerk's  office,  a  certified  coj^y  thereof  must,  at  the  same  time,  be  filed 
therein. 

§  712.— Where  a  warrant  of  attachment  has  been  vacated  or  annulled,  the  sher- 
iff must  forthwith  file,  in  the  clerk's  office,  the  warrant,  mth  a  return  of  his  jiro- 
ceediugs  thereon.  Upon  the  application  of  either  party,  and  proof  of  the  sheriff's 
neglect,  the  com-t  may  direct  him  so  to  do,  f  orthvfith,  or  within  a  specified  time. 


Before  justices  of  the  peace— Sees.  2905-2918,  .3058. 

In  the  marine  court -Sees.  327,  339,  3109,  3175. 

In  district  courts  New  York  city— Sees.  3210,  2905,  2111,  2119. 

Additional  costs — Sec.  3252. 

When  annulled — Sec.  334.3. 

Order  of  preference — Sees.  140G-1408. 

Actions — Partners,  sec.  1415;  officers,  sec.  1421. 

Liens  against  vessels — Banks'  Eev.  Stats. ,  p.  2405,  sees.  4-33. 

Exemptions— Sees.  1.389-1.399,  24G3-3028,  and  Stats.  1883,  p.  1.55;  1884,  p.  112; 
Kev.  Stats.,  Banks'  edition,  p.  1G90,  sec.  10,  p.  1700;  chap.  310,  p.  1719,  sec.  20;  p. 
1729,  chap.  202,  sec.  2;  p.  1900,  chap.  39a 


644  KOETH    CAROLINA. 


NORTH  CAROLIM, 

[Code  «f  1883.] 


CHAPTER  IV. 

ATTACHMENT. 


§  347. — A  -warrant  of  attachment  against  the  property  of  one  or  more  defend- 
ants in  an  action  may  be  granted  upon  the  application  of  the  plaintiff,  as  specified 
in  this  chapter,  when  the  action  is  to  recover  a  sum  of  money  only,  or  damages  for 
one  or  more  of  the  following  causes: 

1.  Breach  of  contract,  express  or  implied. 

2.  Wrongful  conversion  of  personal  property. 

3.  Any  other  injury  to  personal  property,  in  consequence  of  negligence,  fraud, 
or  other  wrongful  act. 

§  348. — The  warrant  of  attachment  may  be  granted  to  accompany  the  siunmons, 
or  at  any  time  after  the  commencement  of  the  action.  Personal  service  of  the 
summons  must  be  made  upon  the  defendant  against  whose  property  the  attachment 
is  granted,  within  thirty  days  after  the  granting  thereof,  or  else  upon  the  expira- 
tion of  the  same  time,  service  of  summons  by  publication  must  be  commenced  pur- 
suant to  an  order  obtained  therefor,  and  if  publication  has  been,  or  is  thereafter, 
commenced,  the  service  must  be  made  complete,  by  the  continuance  thereof. 

§  349.  — To  entitle  the  plaintiff  to  such  a  warrant,  he  must  show  by  affidavit  to 
the  satisfaction  of  the  court  granting  the  same,  as  follows: 

1.  That  one  of  the  causes  of  action  specified  in  section  three  hundred  and  forty- 
seven  exists  against  the  defendant.  If  the  action  is  to  recover  damages  for  breach 
of  contract,  the  defendant  must  show  that  the  plaintiff  is  entitled  to  recover  a  sum 
stated  therein,  over  and  above  all  counter-claims  known  to  him. 

2.  That  the  defendant  is  either  a  foreign  corporation,  or  not  a  resident  of  the 
state;  or,  if  he  is  a  natural  person,  and  a  resident  of  the  state,  that  he  has  departed 
therefrom,  with  intent  to  defraud  his  creditors,  or  to  avoid  service  of  summons,  or 
keeps  himself  concealed  therein  with  like  intent;  or,  if  the  defendant  is  a  natural 
person,  or  a  domestic  corporation,  that  he  or  it  has  removed,  or  is  about  to  remove, 
property  from  the  state,  with  intent  to  defraud  his  or  its  creditors;  or  has  assigned, 
disposed  of,  or  secreted,  or  is  about  to  assign,  dispose  of,  or  secrete,  property  with 
the  like  intent. 

§  350. — The  plaintiff,  within  thirty  days  after  obtaining  a  warrant  of  attachment 
from  a  justice  of  the  peace,  shall  cause  publication  thereof  to  be  made  for  four  suc- 
cessive weeks  at  the  court-house  door  and  four  other  public  places  in  the  county 
where  the  warrant  is  returnable. 

§  351. — If  the  action  be  not  founded  on  a  contract,  or  if  founded  on  a  contract 
and  the  sum  demanded  exceed  two  hundred  dollars,  a  warrant  of  attachment  may 
be  obtained  from  the  judge  of  the  district  embracing  the  county  in  which  the  ac- 
tion has  been  instituted,  or  from  the  clerk  of  the  superior  court  from  which  the 
summons  in  the  action  issued;  and  it  may  be  issued  to  any  county  in  the  state 
where  the  defendant  has  property,  money,  effects,  choses  in  action,  or  debts  due 
him,  and  shall  be  made  returnable  in  term  time  to  the  court  from  which  the  sum- 
mons issued. 

§  352. — When  the  warrant  of  attachment  is  taken  out  at  the  time  of  issuing  the 
summons,  and  the  summons  is  to  be  served  by  publication,  the  order  shall  direct 
that  notice  be  given  in  said  pulilication  to  the  defendant  of  the  issuing  of  the  at- 
tachment, and  when  the  warrant  of  attachment  is  obtained  after  the  issuing  of  the 
summons,  the  defendant  shall  be  notified  by  publication  of  the  fact  for  four  suc- 
cessive weeks  in  some  newspaper  published  in  the  county  to  which  it  is  retm-nable, 
or  if  there  be  none  such,  then  in  one  jiublished  in  the  judicial  district  including 
said  county,  and  if  there  be  no  newspaper  published  in  the  district,  then  in  any 
newspaper  published  in  the  state.  Said  publication  shall  state  the  names  of  the 
parties,  the  amount  of  the  claims,  and  in  a  brief  way  the  nature  of  the  demand  and 
the  time  and  place  to  which  the  warrant  is  returnable:  Provided,  that  in  proceed- 


NORTH   CAROLINA.  G43 

iDfrs  by  attaebment  begun  and  liarl  before  justices  of  the  peace,  advertisement  in  a 
newsiiiiju'r  sliiill  not  bo  uecfssary,  but  in  all  Kuch  cases,  advertisement  at  tlie  court- 
Louse  (lour  and  four  other  public  places  in  the  county  shall  be  sufficient  publica- 
tion, both  as  to  the  summons  and  warrant  of  attachment. 

§  353. — If  the  action  be  not  founded  on  contract,  and  the  value  of  the  property 
in  controversy  does  not  exceed  the  sum  of  fifty  dollars,  the  warrant  of  attachment 
may,  or  if  tho  action  be  founded  on  contract,  and  the  sum  demanded  does  not  ex- 
ceed two  liundred  dollars,  the  warrant  of  attachment  must,  lie  obtained  from  and 
made  returnable  before  some  justice  of  the  peace  of  a  county,  to  the  superior  court 
of  which  it  mi^lit  have  been  returnable  had  the  sum  demanded  exceeded  two  hun- 
dred dollars,  or  had  the  action  not  have  been  founded  on  contract. 

§  354. — If  the  attachment  be  levied  on  real  property,  the  justice  shall  proceed 
to  try  the  aetion,  but  shall  issue  no  execution  to  sell  the  real  property,  and  shall 
return  the  papers  in  the  case  to  the  office  of  the  clerk  of  the  superior  court  of  his 
county,  where  the  judi,Tnent  shall  be  docketed.  The  levy  of  the  attachment,  how- 
ever, shall  be  a  lien  on  the  real  estate. 

_  §  355.  —It  shall  be  the  duty  of  the  plaintiff  procuring  a  warrant  of  attachment, 
within  ten  days  from  the  issuing  thereof,  to  file  the  aftidavits  on  which  the  pame 
was  granted  in  the  office  of  the  clerk  of  the  superior  court  to  which,  or  with  the 
justice  of  the  peace  before  whom  the  process  is  made  returnable. 

§  353.— Before  issuing  the  warrant,  the  officer  issuing  the  same  shall  require  a 
WTittcn  laidertaking  on  the  part  of  the  plaintiff,  with  sufficient  surety,  to  the  effect 
that  if  the  defendant  recover  judgment,  or  the  attachment  be  set  aside  by  order  of 
the  court,  the  i)laintiff  will  pay  all  costs  that  may  be  awarded  to  the  defendant, 
and  all  damages  which  he  may  sustain  by  reason  of  the  attachment,  not  exceeding 
the  sum  specified  in  the  undertaking,  which  shall  be  at  least  two  himdred  dollars. 

§  357.  — The  warrant  shall  be  directed  to  the  sheriff  of  any  county  in  which  the 
property  of  such  defendant  may  be,  or  in  case  it  be  issued  by  a  justice  of  the  peace 
to  such  sheriff,  or  to  any  constable  of  such  countj',  provided  such  county  be  that 
of  the  justice  issuing  the  warrant,  and  shall  require  such  sheriff  or  constable  to  at- 
tach and  safely  keep  all  the  property  of  such  defendant  within  his  county,  or  so 
much  thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  the  amount  of 
which  must  be  stated  in  conformity  with  the  complaint,  together  with  costs  and 
expenses;  it  must  also  state  when  and  where  it  shall  be  returned.  Several  war- 
rants may  be  issued  at  the  same  time  to  the  sheriffs  of  different  counties. 

§  358. — It  shall  not  be  a  defense  to  an  action  upon  an  undertaking,  given  upon 
granting  a  warrant  of  attachment,  that  the  warrant  was  granted  improperly,  for 
want  of  jurisdiction,  or  for  any  other  cause. 

§  359. — The  officer  to  whom  such  warrant  of  attachment  is  directed  and  de- 
livered shall  seize  and  take  into  his  possession  the  tangible  personal  property  of 
the  defendant,  or  so  much  thereof  as  may  be  necessary,  and  he  shall  be  liable  for 
the  care  and  custodj''  of  such  f)rox)ert}',  as  if  the  same  had  been  seized  under  execu- 
tion; he  shall  levy  on  the  real  estate  of  the  defendant  as  prescribed  for  executions; 
he  shall  make  and  return  with  the  warrant  an  inventory  of  the  property  seized  or 
levied  on;  subject  to  the  du-ection  of  the  coiu't,  he  shall  collect  and  receive  into  bis 
possession  all  debts  owing  to  the  defendant,  and  take  such  legal  proceedings,  either 
in  his  own  name  or  in  that  of  the  defendant,  as  may  be  necessary  for  that  i^urpose. 

§  3G0. — If  any  property,  so  seized,  shall  be  perishable,  or  of  such  character  that 
the  expense  of  keeping  it  until  the  determination  of  the  suit  would  be  likely  to  ex- 
ceed one-fifth  of  its  value,  or  if  any  part  of  it  consists  of  a  vessel,  or  of  any  share 
or  interest  therein,  and  the  person  to  whom  it  belongs,  or  his  agent,  shall  not 
within  ten  days  after  the  serving  of  such  attachment  reclaim  the  same,  the  sheriff 
or  other  officer  having  possession  thereof  shall  apply  to  the  com-t  for  authority  to 
sell  the  same,  stating  the  circumstances;  and  the  same  shall  be  sold,  under  the  or- 
der and  direction  of  the  court,  and  the  proceeds  of  such  sale  shall  be  liable  to  the 
judgment  obtained  upon  such  attachment,  and  shall  be  retained  by  the  sheriff  or 
other  officer  to  await  such  judgment. 

§  3C1. — The  person  owning  the  property  advertised  to  be  sold  according  to  the 
provisions  of  this  sub-chapter,  his  agent  or  attorney,  may,  at  any  time  before  sale, 
replevy  the  same,  by  giving  an  undertaking,  in  double  the  amount  of  the  value  of 
the  property,  with  sufficient  surety,  to  the  effect  that  he  will  return  the  ^iroperty 
to  the  sheriff,  or  other  officer,  if  return  thereof  be  adjudged  by  the  court,  and  pay 
all  costs  that  may  be  awarded  against  him;  and  if  return  of  said  property  cannot 
be  had,  then  that  he  will  pay  j)laintiff  the  value  of  said  property,  and  all  costs  and 
damages  that  may  be  awarded  against  him.    And  upon  the  execution  of  this  un- 


646  NORTH   CAROLINA. 

dertakincf,  the  sheriff,  or  other  officer,  shall  deliver  said  property  to  the  person 
owning  the  same. 

§  362. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
association  or  corporation,  together  with  the  interests  and  profits  thereon,  and  all 
other  property  in  this  state  of  such  defendant,  shall  be  liable  to  be  attached  and 
levied  on,  and  sold  to  satisfy  the  judgment  and  execution. 

§  363. — The  execution  of  the  attachment  upon  any  such  rights,  shares,  or  any 
debts  or  other  property  incapable  of  manual  delivery  to  the  sheriff,  shall  be  made 
bv  leaving  a  certified  copy  of  the  warrant  of  attachment  with  the  president  or 
other  head  of  the  association  or  corporation,  or  with  the  secretary,  cashier,  or  man- 
aging agent  thereof,  or  with  the  debtor  or  individual  holding  such  property,  with  a 
notice  showing  the  property  levied  on. 

§  364. — When  the  sheriff  or  other  officers  shall  serve  an  attachment  on  any  per- 
son supposed  to  be  indebted  to,  or  to  have  any  effects  of  the  defendant  in  the  at- 
tachment, he  shall  at  the  time  summons  such  person  as  a  garnishee  in  writing,  to 
appear  at  the  court  to  which  the  attachment  shall  be  returnable,  or,  if  issued  by  a 
justice  of  the  peace,  at  a  jDlace  and  time  named  in  the  notice,  not  exceeding  twenty 
days  from  date  of  notice,  to  answer  upon  oath  what  he  owes  to  the  defendant,  and 
wliat  effects  of  the  defendant  he  hath  in  his  hands,  and  had  at  the  time  of  serving 
such  attachment,  and  what  effects  or  debts  of  the  defendant  there  are  in  the  hands 
of  any  other,  and  what  person,  to  his  knowledge  and  belief;  and  when  an  attach- 
ment shall  be  served  on  any  garnishee  in  manner  aforesaid,  it  shall  be  lawful  upon 
his  appearance  and  examination  to  enter  up  judgment  and  award  execution  for  the 
plaintiff  against  such  garnishee,  for  all  siims  of  money  due  to  the  defendant  from 
him,  and  for  all  effects  and  estates  of  any  kind  belonging  to  the  defendant,  in 
his  possession  or  custody,  for  the  use  of  the  plaintiff,  or  so  much  thereof  as  shall  be 
sufficient  to  satisfy  the  debt  and  costs  and  all  charges  incident  to  levj-ing  the 
same;  and  all  goods  and  effects  whatsoever  in  the  hands  of  any  garnishee  belong- 
ing to  the  defendant  shall  be  liable  to  satisfy  the  plaintiff's  judgment,  and  shall  be 
delivered  to  the  sheriff  or  other  officer  serving  the  attachment. 

§  365. — When  any  garnishee  shall  be  summoned  as  aforesaid,  and  shall  fail  to 
appear  and  discover  on  oath  as  directed,  the  court,  after  solemnly  calling  the  gar- 
nishee, shall  enter  a  conditional  judgment  against  him,  and  thereupon  a  notice 
shall  issue  against  him  returnable  to  the  court  having  jm-isdiction,  to  show  cause 
why  final  judgment  shall  not  be  entered  against  him;  and  if,  upon  due  execution 
thereof,  such  garnishee  shall  fail  to  appear  at  the  time  and  place  named  in  the  no- 
tice, and  discover  on  oath  in  manner  aforesaid,  the  court  shall  confirm  said  judg- 
ment and  award  execution  for  the  plaintiff's  whole  judgment  and  costs;  and  if, 
upon  examination  of  the  garnishee,  it  shall  appear  to  the  com-t  that  there  is  any  of 
the  defendant's  estate  in  the  hands  of  any  person  who  has  not  been  summoned,  the 
court  shall,  upon  motion  of  the  plaintiff,  grant  a  judicial  attachment,  to  be  leaned 
in  the  hands  of  every  such  person  having  any  of  the  estate  of  the  defendant  in  hia 
custody  or  possession,  who  shall  appear  and  answer,  and  shall  be  liable  as  other 
garnishees. 

§  366. — When  any  garnishee  shall  deny  that  he  owes  to,  or  has  in  his  possession 
any  property  of,  the  defendant,  and  the  plaintiff  shall  on  oath  suggest  to  the  court 
the  contrary;  or  when  any  garnishee  shall  make  such  a  statement  of  facts  that  the 
court  cannot  proceed  to  give  judgment  thereon,  then  the  com-t  shall  order  an  issue 
to  lie  made  up,  which  shall  be  tried  by  a  jm-y,  and  on  their  verdict  judgment  shall 
be  rendered:  Provided,  that  in  a  court  of  a  justice  of  the  peace,  he  may  try  such 
issue,  unless  a  jm:y  be  demanded,  and  then  proceedings  are  to  be  conducted,  in  all 
respects,  as  in  jury  trials  before  courts  of  justices  of  the  peace. 

§  367. — When  a  garnishee  shall  on  oath  confess  that  he  has  in  his  hands  any 

property  of  the  defendant  of  a  specific  nature,  or  is  indebted  to  such  defendant  by 
any  security  or  assumption  for  the  delivery  of  any  specific  article,  except  as  here- 
inafter excepted,  then  the  coiu-t  shall  immediately  order  a  jury  to  be  impaimeled 
and  sworn  to  inquire  of  the  value  of  such  specific  property,  and  the  verdict  of  the 
jury  shall  subject  such  garnishee  to  the  fiajTiient  of  the  valuation,  or  so  much 
thereof  as  shall  be  sufficient  to  satisfy  the  debt  or  damages,  and  costs  to  the  plaint- 
iff: Provided,  that  in  a  court  of  a  justice  of  the  peace,  he  may  try  such  issue,  imless 
a  jury  be  demanded,  and  then  proceedings  are  to  be  conducted  in  all  respects  as  in 
jury  trials  before  courts  of  justices  of  the  peace.  Provided,  further,  that  if  such 
garnishee  shall  also  state  in  his  answer  that  said  specific  property  was  left,  or  de- 
posited, in  his  possession  by  the  defendant  as  a  bailment,  or  that  he  hath  tendered 
said  specific  articles  agreeable  to  contract,  and  that  they  were  refused  by  the  de- 
fendant, and  that  he  then  was,  and  always  had  been,  ready  to  deliver  the  same;  or 
that  lie  had  such  specific  articles  at  the  time  and  place  specified  in  such  covenant 


NOKTH    CAROLINA.  647 

or  as^reement  ready  to  be  delivered,  and  is  still  ready  to  deliver  the  same;  and  such 
statement  shall  be  admitted  by  the  plaintiff  or  found  by  a  jury  or  the  court,  then 
in  any  such  case,  the  garnishee  shall  be  exonerated  by  the  delivery  of  such  specific 
articles  to  the  sheriff,  who  shall  j)roceed  as  if  the  attachment  had  been  originally 
levied  on  the  property. 

§  3G8. — When  any  garnishee  shall  declare  in  his  answer  that  the  money  or  spe- 
cific article  due  by  him  will  become  payable  or  deliverable  at  a  future  day,  and  the 
same  shall  be  admitted  by  the  plaintiff  or  found  by  a  jury  or  the  court,  in  such  case 
conditional  judgment  shall  be  entered  against  the  garuishee,  and  the  plaintiff  may 
obtain  judgment  against  the  defendant  for  his  demand,  but  shall  not  take  final 
judgment  against  the  garnishee  wdthout  notice  to  show  cause. 

§  3C9. — "Whenever  the  sheriff  or  other  lawful  officer  with  a  warrant  of  attach- 
ment or  execution  shall  apply  to  any  officer  mentioned  in  section  three  hundred  and 
sixty-three,  or  to  any  debtor  or  individual,  for  the  purpose  of  attaching  or  levying 
on  the  property  of  the  defendant  in  such  warrant,  such  officer,  debtor,  or  individ- 
ual shall  furnish  him  u-ith  a  certificate  under  his  hand,  designating  the  number  of 
rights  or  shares  of  the  defendant  in  such  association  or  corporation,  with  any  divi- 
dend or  any  incumbrance  thereon,  or  the  amount  and  description  of  the  property 
held  by  such  association,  cori^oration,  or  individual,  for  the  benefit  of,  or  debt 
owing  to  the  defendant.  If  such  officer,  deljtor,  or  individual  refuse  to  do  so,  he 
may  be  required  by  the  court  or  judge  to  attend  before  him,  and  be  examined  on 
oath  concerning  the  same,  and  obedience  to  such  order  may  be  enforced  by 
attachment. 

§  370. — In  case  judgment  be  entered  for  the  plaintiff  in  such  action,  the  sheriff 
shall  satisfy  the  same  out  of  the  property  attached  by  him,  if  it  shall  be  sufficient 
for  that  purpose : 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all  property  sold  by  him,  and 
of  all  debts  or  credits  collected  by  him,  or  so  much  as  shall  be  necessary  to  satisfy 
such  judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  such 
judgment,  he  shall  proceed  to  sell  under  such  execution  so  much  of  the  attached 
property,  real  or  personal,  excejit  as  provided  in  subdivision  four  of  this  section,  as 
may  be  necessary  to  satisfy  the  lialance,  if  enough  for  that  jjurpose  shall  remain  in 
his  hands;  and  in  case  of  the  sale  of  anj^  rights  or  shares  in  the  stock  of  a  corpora- 
tion or  association,  the  sheriff  shall  execute  to  the  purchaser  a  certificate  of  sale 
thereof,  and  tlie  purchaser  shall  thereupon  have  all  the  rights  and  privileges  in  re- 
spect thereto  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant  shall  have  passed 
out  of  the  hands  of  the  sheriff  without  having  been  sold  or  converted  into  money, 
such  sheriff  shfill  repossess  himself  of  the  same,  and  for  that  purpose  shall  have  all 
the  authority  wliich  he  had  to  seize  the  same  tinder  the  attachment;  and  any  i^er- 
son  who  shall  willfully  conceal  or  withhold  such  property  from  the  sheriff  shall  be 
liable  to  double  damages  at  the  suit  of  the  party  injured. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the  sheriff  may  pro- 
ceed to  collect  the  notes  and  other  evidences  of  debt,  and  the  debts  that  may  have 
been  seized  or  attached,  under  the  warrant  of  attachment,  and  to  prosecute  any 
bond  he  may  have  taken  in  the  course  of  such  proceedings,  and  apply  the  proceeds 
thereof  to  the  payment  of  the  judgment. 

At  the  expiration  of  six  months  from  the  docketing  of  the  judgment,  the  court 
shall  have  power  upon  the  petition  of  the  jolaintiff,  accompanied  by  an  affidavit 
setting  forth  fully  all  the  proceedings  which  have  been  had  by  the  sheriff  since  the 
service  of  the  attachment,  the  property  attached,  and  the  disposition  thereof,  and 
also  the  afiida\-it  of  the  sheriff  that  he  has  used  due  diligence,  and  endeavored  to 
collect  the  evidences  of  debt  in  his  hands  so  attached,  and  that  there  remains  un- 
collected of  the  same,  any  part  or  portion  thereof,  to  order  the  sheriff  to  sell  the 
same  upon  such  terms  and  in  such  manner  as  shall  be  deemed  proper.  Notice  of 
such  application  shall  be  given  to  the  defendant  or  to  his  attorney,  if  the  defendant 
shall  have  appeared  in  the  action.  In  case  the  summons  has  not  been  personally 
served  on  tho  defendant,  the  court  shall  make  such  rule  or  order,  as  to  service  of 
notice,  and  time  of  service,  as  shall  be  deemed  just.  When  the  judgment  and  aU 
costs  of  the  proceedings  shall  have  been  i^aid,  the  sheriff,  upon  reasonable  demand, 
shall  deliver  over  to  the  defendant  the  residue  of  the  attached  property,  or  the 
proceeds  thereof. 

§  371. — The  actions  herein  authorized  to  be  brought  by  the  sheriff  may  be  pros- 
ecuted by  tho  plaintiff,  or  under  his  direction,  upon  the  delivery  by  him  to  the 
sheriff  of  an  undertaldng  executed  by  two  sufficient  sureties,  to  the  effect  that  the 
plaintiff  will  indemnify  the  sheriff  from  all  tlamages,  costs,  and  expenses  on  account 
thereof,  not  exceeding  two  himdi-ed  and  fifty  dollars  in  any  one  action.     Such  sure- 


648  NORTH    CAROLINA. 

ties  shall,  in  aU  cases  when  required  by  the  sheriff,  justify  by  making  an  affidavit 
that  each  is  a  freeholder,  and  •>vorth  double  the  amount  of  the  penalty  of  the  bond, 
over  and  above  all  demands,  liabilities,  and  exemptions. 

§  372. — If  the  foreign  corporation,  or  the  absent,  absconding,  or  concealed  de- 
fendant, recover  judgment  against  the  i^laintiff  in  such  action,  any  bond  taken 
upon  the  issuing  of  the  warrant  of  attachment,  and  any  bond  taken  by  the  s  aerijF, 
except  such  as  are  mentioned  in  the  preceding  section,  all  the  proceeds  of  sales  and 
moneys  collected  by  him,  and  all  the  property  attached  remaining  in  his  Lr.ncb, 
shall  be  delivered  by  him  to  the  defendant  or  to  his  agent,  on  request,  and  the 
warrant  shall  be  discharged  and  the  property  released. 

§  373. — "Whenever  the  defendant  shall  have  appeared  in  such  action,  he  may  ap- 
ply to  the  court  in  which  the  action  is  pending,  or  to  the  judge  thereof,  for  an  order 
to  discharge  the  same;  and  if  the  same  be  granted,  all  the  proceeds  of  sale,  and 
naoneys  collected  in  such  action,  and  all  the  property  attached  remaining  in  the 
hands  of  any  ofBcer  of  the  court,  under  any  process  or  order  in  such  action,  shall  be 
delivered  or  paid  to  the  defendant  or  to  his  agent,  and  released  from  the  attach- 
ment. And  where  there  is  more  than  one  defendant,  and  several  property  of 
either  of  the  defendants  has  been  seized  by  virtue  of  the  order  of  attachment,  the 
defendant,  whose  several  i^roperty  has  been  seized,  may  apply  in  like  manner  for 
relief. 

§  374.  — Upon  such  application  the  defendant  shall  deliver  to  the  court  an  un- 
dertaking, executed  by  two  sureties  residing  in  this  state,  approved  by  such  comi;, 
to  the  effect  that  such  surety  ^vill,  on  demand,  pay  to  the  plaintiff  the  amoimt  of 
judgment  that  maybe  recovered  against  the  defendant  in  the  action,  not  exceeding 
the  sum  specified  in  the  undertaking,  which  shall  be  at  least  double  the  amount 
claimed  bj'  the  plaintiff  in  his  complaint.  If  it  shall  appear  by  affidavit  that  the 
property  attached  be  of  less  value  than  the  amount  claimed  by  the  plaintiff,  the 
court  or  judge  may  order  the  same  to  be  appraised,  and  the  amount  of  the  imder- 
taking  shall  then  be  double  the  amount  so  appraised.  And  where  there  is  more 
than  one  defendant,  and  several  property  of  either  of  the  defendants  has  been  seized 
by  virtue  of  the  order  of  attachment,  the  defendant  whose  several  property  has 
been  seized  may  deliver  to  the  court  an  undertaking,  in  accordance  with  this  sec- 
tion, to  the  effect  that  he  will,  on  demand,  pay  to  the  plaintiff  the  amount  of  judg- 
ment that  may  be  recovered  against  such  defendant.  And  all  of  this  section, 
applicable  to  such  an  undertaking,  shall  be  applied  thereto. 

§  375.  — When  the  property  attached  shall  be  claimed  by  any  other  person,  the 
claimant  may  interplead,  as  provided  in  section  three  hundred  and  thirty-one. 

§  376. — The  sheriff  shall  retm-n  the  warrant  of  attachment,  and  the  undertaldnga 
provided  for  in  this  chapter,  with  a  statement  of  his  proceedings  thereon,  at  the 
time  and  place  at  which  it  is  on  its  face  returnable,  and  upon,  or  at  any  time  after, 
such  return,  he  may  obtain  from  the  court  to  which  the  same  was  returriable  a 
certified  copy  thereof,  which  shall  be  held  and  deemed  for  the  pm-pose  of  giving 
him  authority,  the  same  as  the  original;  and  when  the  warrant  shall  have  been 
fully  executed  or  discharged,  the  sheriff  shall  return  the  same,  with  his  proceed- 
ings, to  said  court. 

§  377. — The  defendant,  or  a  person  who  has  acquired  a  lien  upon,  or  interest  in, 
his  property  after  it  was  attached,  may  at  any  time  before  the  actual  application 
of  the  attached  property,  or  the  proceeds  thereof,  to  the  payment  of  a  judgment 
recovered  in  the  action,  aj)ply  to  the  com't  having  jurisdiction  to  vacate  or  modify 
the  warrant,  or  to  increase  the  security  given  by  the  plaintiff,  or  for  one  or  more 
of  those  forms  of  relief,  together  or  in  the  alternative,  as  in  cases  of  other  provis- 
ional remedies. 

§  378. — The  sureties  to  all  undertakings  in  all  proceedings  for  attachment  may 
be  excelled  to,  and  justified  as  reqiured  in  action  for  claim  and  deli%"ery. 


Exemptions — Personalty,  sec.  501;  homestead,  sec.  511;  dower,  sees.  2104,  2105; 
things  exhibited  at  fairs,  etc.,  sec.  2797;  laborers'  liens  enforced  by,  sec.  179.j;  poU 
tax,  sec.  3G75. 

Code  ai^pUcable  to  justices  of  the  peace — Sec.  853. 


OHIO.  649 

OHIO. 

[Eevised  Statutes  of  1880,  and  Subsequent  Statutes.] 


TITLE  1,  DIV.  6,  CHAP.  2. 

GROUNDS   OP  ATTACHMENT. 

§  5521. — In  a  civil  action  for  the  recovery  of  money,  the  plaintiff  may,  at  or 
after  the  commencement  thereof,  have  an  attachment  against  the  property  of  the 
defendant,  upon  the  gi-ounds  herein  stated: 

1.  When  the  defendant,  or  one  of  several  defendants,  is  a  foreign  corporation, 
or  a  non-resident  of  this  state;  or, 

2.  Has  absconded,  ^vith  intent  to  defraud  his  creditors;  or, 

3.  Has  left  the  county  of  his  residence,  to  avoid  the  service  of  a  simamons;  or, 

4.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or, 

5.  Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  jurisdiction  of 
the  court,  with  the  intent  to  defi-aud  his  creditors;  or, 

6. .  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the  pur- 
pose of  placing  it  beyond  the  reach  of  his  creditors;  or, 

7.  Has  property,  or  rights  of  action,  which  he  conceals;  or, 

8.  Has  assigned,  removed,  disposed  of,  or  is  about  to  dispose  of  his  property,  or 
a  part  thereof,  with  the  intent  to  defraud  his  creditors;  or, 

9.  Has  fraudulently  or  criminally  contracted  the  debt,  or  incmTed  the  obliga- 
tion, for  which  suit  is  about  to  be  or  has  been  brought. 

But  an  attachment  shall  not  be  granted  on  the  ground  that  the  defendant  is  a 
f oreig-n  corporation,  or  a  non-resident  of  this  state,  for  any  claim  other  than  a  -debt 
or  demand  arising  upon  contract,  judgment,  or  decree,  or  for  causing  death  by  a 
negligent  or  wrongful  act.     [62  v.  10,  §  191.] 

HOW  ATTACHMENT  OBTAINED. 

§5522. — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in 
which  the  action  is  brought,  in  any  case  mentioned  in  the  preceding  section,  when 
there  is  filed  in  his  office  an  affidavit  of  the  plaintiff,  his  agent  or  attorney, 
showings 

1.  The  nature  of  the  plaintiff's  claim; 

2.  That  it  is  just; 

3.  The  amount  which  the  affiant  believes  the  plaintiff  ought  to  recover;  and 

4.  The  existence  of  any  one  of  the  grounds  for  an  attachment  enumerated  in 
the  preceding  section.     [51  v.  57,  §  192.] 

§  5523. — WTien  the  ground  of  the  attachment  is  that  the  defendant  is  a  foreign 
corporation,  or  a  non-resident  of  this  state,  the  order  of  attachment  may  be  issued 
without  an  undertaking;  but  in  all  other  cases  the  order  shall  not  be  issued  by  the 
clerk  until  there  is  executed  in  his  oflSce,  by  sufficient  surety  of  the  plaintiff,  to  be 
approved  by  the  clerk,  an  undertaking,  in  a  sum  equal  to  double  the  amount  of  the 
plaintiff's  claim,  to  the  effect  that  the  plaintiff  shall  pay  the  defendant  all  damages 
which  he  may  sustain  by  reason  of  the  attachment  if  the  order  prove  to  have  been 
wrongfully  obtained.     [51  v.  57,  §  193.] 

§  5524. — The  order  of  attachment  shall  be  directed  and  delivered  to  the  sheriff, 
and  shall  require  him  to  attach  the  lands,  tenements,  goods,  chattels,  stocks,  or  in- 
terest in  stocks,  rights,  credits,  money,  and  effects  of  the  defendant,_in  his  county, 
not  exempt  by  law  from  being  ajiplied  to  the  pajTnent  of  plaintiff"s  claim,  or  so 
much  thereof  as  will  satisfy  the  plaintiff's  claim,  to  be  stated  in  the  order  as  in  the 
affidavit,  and  the  probable  costs  of  the  action,  not  exceeding  fifty  dollars.  [51  v. 
57,  §  194.] 

§  5525. — Orders  of  attachment  may  be  issued  to  the  sheriffs  of  different  counties; 
and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same  time, 
or  in  succession;  but  such  only  as  have  been  executed  shall  be  taxed  in  the  costs, 
unless  otherwise  directed  by  the  court.    [51  v.  57,  J^195J 


650  OHIO. 

§  5526. — The  return  day  of  tte  order  of  attactment,  when  the  order  is  issued  at 
the  commencement  of  the  action,  shall  be  the  same  as  that  of  the  summons;  and 
when  issued  afterward,  it  shall  be  twenty  days  after  it  issued.     [51  v.  57,  §  196.] 

EXECUTION  AND  EETDEN  THEREOF. 

§  5527. — tVhen  there  are  several  orders  of  attachment  against  the  same  defend- 
ant, they  shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff. 
[51  V.  57,  §  197.] 

§  5528. — The  sheriff  shall  execute  the  order  of  attachment  without  delay;  he 
shall  go  to  the  place  where  the  defendant's  property  is,  and  there,  in  the  presence 
of  two  freeholders  of  the  county,  declare  that,  by  virtue  of  the  order,  he  attaches 
the  property  at  the  suit  of  the  plaratiff;  the  officer,  with  the  freeholders,  who  shall 
be  first  sworn  by  the  officer,  shall  make  a  true  inventory  and  appraisement  of  aU 
the  property  attached,  which  shall  be  signed  by  the  officer  and  freeholders,  and  re- 
turned with  the  order;  when  the  property  attached  is  real  property,  the  officer 
shall  leave  with  the  occupant  thereof,  or,  if  there  is  no  occupant,  in  a  conspicuous 
place  thereon,  a  copy  of  the  order;  and  when  it  is  personal  property,  and  can  be 
come  at,  he  shall  take  it  into  his  custody,  and  hold  it  subject  to  the  order  of  the 
court.     [51  v.  57,  §  198.] 

§  5529. — The  sheriff  shall  deliver  the  property  attached  to  the  person  in  whose 
possession  it  was  found,  upon  the  execution  by  such  person,  in  the  presence  of  the 
sheriff,  of  an  undertaking  to  the  plaintiff,  with  sufficient  surety,  resident  in  the 
county,  to  the  effect  that  the  parties  to  the  same  are  bound,  in  double  the  appraised 
value  of  the  property,  that  the  property,  or  its  appraised  value  in  money,  shall  be 
forthcoming  to  answer  the  judgment  of  the  court  in  the  action;  but  if  it  appear  to 
the  court  that  any  part  of  such  property  has  been  lost  or  destroyed  by  unavoidable 
accident,  the  value  thereof  shall  be  remitted  to  the  person  so  bound.  [51  v.  57, 
§  199.] 

§  5530. — When  the  plaintiff,  his  agent  or  attorney,  makes  oath,  in  writing,  that 
he  has  good  reason  to  believe,  and  does  believe,  that  any  person,  partnershii)  or 
corijoration  in  the  affidavit  named  has  property  of  the  defendant  in  his  possession, 
describing  the  same,  if  the  officer  cannot  get  possession  of  such  property^  he  shall 
leave  with  such  garnishee  a  copy  of  the  order  of  attachment,  with  a  written  notice 
that  he  appear  in  court  and  answer,  as  provided  in  section  fifty-five  hundred  and 
forty-seven;  and  if  the  garnishee  does  not  reside  in  the  coimty  in  which  the  order  of 
attachment  was  issued,  the  process  may  be  served  by  the  proper  officer  of  the 
county  in  which  the  garnishee  resides,  or  may  be  personally  served.  [Stats.  1881, 
p.  93.1 

§  5531. — The  service  of  process  of  garnishment  upon  the  sheriff,  coroner,  clerk, 
constable,  master  commissioner,  or  marshal  of  a  municipal  corporation,  or  other 
officer  having  in  his  possession  any  money,  claim,  or  other  property  of  the  defend- 
ant, or  in  which  the.  defendant  has  an  interest,  shall  bind  the  same  from  the  time  . 
of  such  service,  and  shall  be  a  legal  excuse  to  such  officers,  to  the  extent  of  the  de- 
mand of  the  plaintiff,  for  not  paying  such  money  or  delivering  such  claim  or  prop- 
erty to  the  defendant,  as  by  law,  or  the  terms  of  the  process  in  his  hands,  he  would 
otherwise  be  bound  to  do.     [74  v.  IGO,  §  200.] 

§  5532. — The  answer  of  the  garnishee  shall  be  made  before  the  clerk  of  the  court 
of  common  pleas  of  the  county  in  which  he  resides,  or,  if  he  resides  out  of  the  state, 
before  the  clerk  of  the  coiui;  of  conanon  pleas  of  the  coimty  where  he  was  served, 
or  where  the  action  is  pending;  a  special  examination  of  the  garnishee  shall  be  had; 
and  actions  against  him  under  section  fifty-five  hundred  and  fifty-one  shall  be 
brought  in  the  county  in  which  he  resides.     [74  v.  IGO,  §  200.] 

§  5533. — The  clerk  of  the  court  of  common  pleas  before  whom  the  answer  is 
made,  shall  transmit  the  same  to  the  clerk  of  the  court  in  which  the  suit  is  pend- 
ing, in  the  same  manner  as  depositions  are  required  to  be  directed  and  transmitted, 
and  shall  receive  for  his  services  such  fees  as  are  allowed  by  law  for  taking  deposi- 
tions, and  to  clerks  for  furnishing  certificates,  with  their  seals  of  office  attached; 
and  if  the  garnishee  admit  an  indebtedness  to  the  defendant,  and  the  com-t  order 
the  payment  of  the  same,  or  any  part  thereof,  to  the  plaintitf,  and  the  garnishee 
fail  to  jyaj  the  same  according  to  such  order,  execution  may  issue  thereon  as  upon 
judgments  for  the  payment  of  money.     [74  v.  ICO,  §  200.] 

§  5534. — If  the  garnishee  is  a  person,  the  copy  of  the  order  and  notice  shall  be 
served  upon  him  i^ersonally,  or  left  at  his  usual  place  of  residence;  if  a  partnership 
garnisheed  by  its  company  name,  they  shall  be  left  at  its  usual  place  of  doing  busi- 
ness; and  if  a  corx^oration,  they  shall  be  left  Avith  the  president  or  other  principal 


OHia  651 

officer,  or  the  isecretary,  cashier,  or  managinc^  agent  thereof;  and  if  such  corpora/- 
tion  is  a  railroad  companj',  they  may  be  left  with  any  regular  ticket  or  frei'^ht 
agent  thereof,  in  any  county  in  which  the  railroad  is  located.     [Stats.  1881,  p.  03.} 

§  5535. — Different  attachments  of  the  same  property  may  be  made  by  the  same 
officer;  and  one  inventory  and  appraisement  shall  be  sufficient^  and  it  shall  not  be 
necessary  to  return  the  same  with  more  than  one  order.     [51  v.  57,  §  202.] 

§  553G.  — When  the  property  is  under  attachment,  attachments  of  the  same  un- 
der subsequent  orders  shall  be  as  follows : 

1.  If  it  is  real  property,  it  shall  be  attached  as  in  the  manner  prescribed  in  sec- 
tion fiftj^-five  hundred  and  twenty-eight. 

2.  If  it  is  personal  property,  it  shall  be  attached  as  in  the  hands  of  the  officer,  . 
and  subject  to  any  previous  attachment. 

3.  If  a  person  be  made  a  garnishee  more  than  once  with  respect  to  the  same 
indebtedness  or  liability,  a  copy  of  the  order  and  notice  shall  be  left  with  him,  in 
the  manner  prescribed  in  section  fifty-five  hundred  and  thirty.     [51  v.  57,  §  203.] 

§  5537. — The  officer  shall  return  upon  every  order  of  attachment  what  he  has 
done  under  it,  and  the  return  must  show  the  property  attached,  and  the  time  it  was 
attached;  when  garnishees  are  served,  their  names,  and  the  time  each  was  served, 
must  be  stated;  and  the  officer  shall  return  with  the  order  all  undertakings  given 
under  it.     [51  v.  57,  §  204.] 

§  5538. — An  order  of  attachment  shall  bind  the  property  attached  from  the  time 
of  service;  and  the  garnishee  shall  stand  liable  to  the  plaintiff  in  attachment  for  all 
property  of  tlie  defendant  in  his  hands,  and  money  and  credits  due  from  him  to  the 
defendant,  from  the  time  he  is  served  ■with  the  written  notice  mentioned  in  section 
fifty-five  hundred  and  thirty;  but  when  property  is  attached  in  the  hands  of  a, 
consignee,  his  lien  thereon  shall  not  be  affected  by  the  attachment.  [51  v.  67, 
§  2050 

DISPOSITION   OF  ATTACHED   PKOPERTT. 

§  5539. — The  court,  or  a  judge  thereof  in  vacation,  may,  on  the  application  of 
the  f)laintiff,  and  on  good  cause  shown,  appoint  a  receiver,  who  shall  take  an  oath, 
and  give  an  undertaking,  as  is  provided  in  other  cases.     [51  v.  57,  §  20G.] 

§5540. — The  receiver  shall  take  possession  of  all  notes,  due-bills,  books  of  ac- 
count, accounts,  and  all  other  evidences  of  debt,  that  have  been  taken  by  the  sheriff 
or  other  officer  as  the  i^roperty  of  the  defendant  in  attachment,  and  shall  proceed 
to  settle  and  collect  the  same,  and  for  that  purpose  he  may  commence  and  main- 
tain actions  in  his  owia  name,  as  such  receiver;  but  in  such  actions  no  right  of  de- 
fense shall  be  impaired  or  affected.     [51  v.  57,  §  207.] 

§  5541. — The  receiver  .shall  forthwith  give  notice  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant  in  attachment,  which  notice  shall  be  ^vritten  or 
printed,  and  shall  be  served  on  the  debtor  by  copy  personally,  or  by  copy  left  at 
his  residence;  and,  from  the  date  of  such  service,  the  debtors  shall  stand  liable  to 
the  plaintiff  in  attachment  for  the  amount  of  money  and  credits  of  the  defendant 
in  attachment  in  their  hands,  or  due  from  them  to  him,  and  shall  account  therefor 
to  the  receiver.     [51  v.  57,  §  208.] 

§  5542. — The  receiver  shall,  when  required,  report  his  proceedings  to  the  coiirt, 
and  hold  all  money  collected  by  him,  and  property  which  may  come  into  his  hands, 
subject  to  the  order  of  the  court.     [51  v.  57,  §  209.] 

§5543. — When  a  receiver  is  not  appointed,  the  officer  who  attaches  the  prop- 
erty shall  have  all  the  powers,  and  perform  all  the  duties,  of  a  receiver  appointed 
by  the  court  or  a  judge,  and  may,  if  necessary,  conamence  and  maintain  actions  in 
his  o^\-n  name,  as  such  officer;  and  he  may  be  required  to  give  security  other  than 
his  official  undertaking.     [51  v.  57,  §  210.] 

§  5544. — The  com^,  or  a  judge  thereof  in  vacation,  may  make  proper  orders  for 
the  preservation  of  the  property  during  the  pendency  of  the  suit,  and  may  direct  a 
sale  of  x^roijerty  when,  because  of  its  perishable  nature,  or  the  cost  of  keeping 
it,  a  sale  will  be  for  the  benefit  of  the  jiarties;  the  sale  shall  be  public,  after  such 
advertisement  as  is  prescribed  for  the  sale  of  like  property  on  execution,  and  shall 
be  made  in  such  manner,  and  upon  such  terms  of  creclit,  with  security,  as  the  court 
or  judge,  having  regard  to  the  i^robaljft  duration  of  the  action,  may  direct;  and  the 
sheriff  shall  hold  and  pay  over  all  proceeds  of  the  sale  collected  by  him,  and  all 
money  received  by  him  from  garnishees,  under  the  same  requirements  and  respon- 
sibilities of  himself  and  sureties  as  are  provided  in  respect  to  money  deposited  in 
lieu  of  bail.     [51  v.  57,  §  211.] 


652  OHIO. 

PE0CEEDING3   TJPOX  ATTACITMENT": 

§  5545. — If  the  defendant,  or  other  person  on  his  behalf,  at  any  time  before 
jud,5:ment,  cause  an  undertaking  to  be  executed  to  the  plaintiif,  by  suScient  surety 
resident  in  the  county,  to  be  approved  by  the  court,  in  double  Lhe  amount  of  the 
plaintiff's  claim  as^tated  in  his  affidavit,  to  the  effect  that  the  defendant  shall  ijer- 
form  the  judgment  of  the  court,  the  attachment  shall  be  discharged,  and  restitution 
made  of  any  property  taken  under  it,  or  the  proceeds  thereof;  and  such  undertak- 
ing shall  also  discharge  the  liability  of  a  garnishee  in  the  action,  for  any  property 
of  the  defendant  in  his  hands.     [51  v.  57,  §  212.] 

§  554G. — The  undertaking  mentioned  in  the  preceding  section  may,  in  vacation, 
be  executed  in  the  presence  of  the  officer  having  the  order  of  attachment  in  his 
hands,  or,  after  the  return  of  the  order,  before  the  clerk,  with  the  same  eUect  as  if 
executed  in  court;  the  sureties,  in  either  case,  to  be  approved  by  the  ofHcer  before 
whom  the  undertaking  is  executed.     [51  v.  57,  §  213.] 

§  5547. — The  garnishee,  if  the  order  of  attachment  be  returned  during  a  term  of 
court,  and  twenty  days  before  the  close  thereof,  shall  appear  at  that .  term,  and  if 
the  order  be  returned  during  vacation,  he  shall  appear  at  the  term  next  after  its 
return;  and  he  shall  answer,  under  oath,  all  questions  put  to  him  touching  the 
property  of  every  description,  and  credits,  of  the  defendant,  in  his  i)os3e33ion  or 
under  his  control,  and  he  shall  disclose,  truly,  the  amount  omng  to  him  by  the  de- 
f  jndant,  whether  due  or  not,  and,  in  case  of  a  corporation,  any  stock  therein  held 
by  or  for  the  benefit  of  the  defendant,  at  or  after  the  service  of  notice.  [51  v.  57, 
§  214.] 

§  5543. — A  garnishee  may  pay  the  money  owing  to  the  defendant  by  him  to  the 
ofHcer  having  th?  order  of  attachment,  or  into  court;  he  shall  be  discharged  from 
liability  to  the  defendant  for  any  money  so  paid,  not  exceeding  the  plaintiii's  claim, 
and  shall  not  be  subjected  to  costs  beyond  those  caused  by  his  resistance  of  the 
claim  against  him;  and  if  he  disclose  the  property  in  his  hands,  or  the  true  amount 
owing  by  him,  and  deliver  or  pay  the  same  according  to  the  order  of  the  court,  he 
shall  be  allowed  his  costs.     [51  v.  57,  §  215.] 

§  5549. — If  the  garnishee  fail  to  appear  in  court  and  answer,  as  required  by  sec- 
tion fifty-five  hundred  and  fortj'-seven,  the  court  may  i^roceed  against  him  by 
attaahment  as  for  a  contempt.     [51  v.  57,  §  21G.] 

§  5550.— If  the  garnishee  appear  and  answer,  and  it  be  discovered  on  his  exam- 
ination, that  at  or  after  the  service  of  the  order  of  attachment  and  notice  upon 
him,  he  was  possessed  of  any  property  of  the  defendant,  and  was  indebted  to  him, 
or  either,  the  court  may  order  the  delivery  of  such  property,  and  the  payment  of 
the  amount  owing  by  him,  into  com't,  or  either;  or  the  court  ma;,'  permit  the  gar- 
nishee to  retain  the  property,  or  the  amount  owing,  upon  the  execution  of  an  un- ' 
dertaking  to  the  plaintiif,  bj''  sufScient  surety,  to  the  effect  that  the  amount  shall 
be  paid,  or  the  property  forthcoming,  as  the  court  may  direct.     [51  v.  57,  §  217.] 

§  55.51.  — If  the  garnishee  fail  to  appear  and  answer,  or  if  he  appear  and  answer, 
and  his  disclosure  be  not  satisfactory  to  the  plaintiff,  or  if  he  fail  to  comply  with 
the  order  of  the  com't  to  deliver  the  property  and  pay  the  money  owing  into  court, 
or  to  give  the  undertaking  required  in  the  last  section,  the  i^laintiff  may  proceed 
against  him  by  civil  action;  and  thereupon  such  proceedings  maybe  had  as  in  other 
actions,  and  jud.gment  may  be  rendered  in  favor  of  the  plaintiff  for  the  amount  of 
property  and  credits  of  every  land  of  the  defendant  in  possession  of  the  garnishee, 
and  for  what  may  appear  to  be  owing  by  him  to  the  defendant,  and  for  the  costs  of 
the  proceedings  against  the  garnishee.     [51  v.  57,  §  218.] 

§  5552. — If  the  plaintiff  proceed  against  the  garnishee  by  action,  for  the  cause 
that  his  disclosure  was  imsatisfactorj',  unless  it  appear  in  the  action  that  such  dis- 
closure was  incomplete,  he  shall  pay  costs  of  such  action;  and  when  the  claim  of 
the  plaintiff  in  attachment  is  satisfied,  the  defendant  may,  on  motion,  be  substi- 
tuted as  the  plaintiff  in  the  judgment.     [51  v.  57,  §  218.] 

§.5553. — Final  judgment  shall  not  be  rendered  against  the  garnishee  until  the 
action  against  the  defendant  in  attachment  is  determined;  if  in  such  action  judg- 
ment be  rendered  for  the  defendant  in  attachment,  the  garnishee  shall  be  dis- 
charged, and  recover  costs;  and  if  the  plaintiff  recover  against  the  defendant  in 
attachment,  and  the  garnishee  deliver  up  all  the  projierty  and  credits  of  the  de- 
fendant in  his  possession,  and  pay  all  the  money  due  from  him,  as  the  court  may 
order,  the  garnishee  shall  be  discharged,  and  the  costs  of  proceedings  against  him 
shall  be  paid  out  of  the  property  and  money  so  surrendered,  or  as  the  court  deems 
eight  and  ijroper.    [51  v.  57,  §  219.] 


OHIO.  653 

§5554.— If  jnclgraent  in  the  action  bo  rendered  for  tie  defendant,  tlie  attach- 
ment shall  1)0  discharged,  and  the  property  attached,  or  its  proceeds,  shall  be  re- 
turned to  him.     [51  V.  57,  §  220.] 

§  5555. — If  judgment  be  rendered  foi^the  plaintiff,  it  shall  be  satisfied  as  follows: 
So  much  of  the  proi^erty  remaining  in  toe  hands  of  the  officer,  after  applying  the 
money  arising  from  the  sale  of  perishable  property,  and  so  much  of  the  personal 
property,  lands  and  tenements,  if  any,  whether"  held  by  legal  or  equitaljle  title,  as 
may  be  necessary  to  satisfy  the  judgment,  shall  be  sold  by  order  of  the  court,  un- 
der the  same  restrictions  and  regulations  as  if  the  same  had  leen  levied  on  by 
execution;  and  the  money  arising  therefrom,  with  thd  amount  which  may  be  recov- 
ered from  the  garnishee,  sliall  be  applied  to  satisfy  the  judgment  and  costs;  if  there 
be  not  enough  to  satisfy  the  same,  the  judgment  shall  stand,  and  execution  may 
issue  tiiereon  for  the  residue,  in  all  respects  as  in  other  cases;  and  any  surplus  of 
the  attached  property,  or  its  proceeds,  shall  be  returned  to  the  defendant.  [51  v. 
57,  §  221.] 

§  5556.  — The  court  may  compel  the  delivery  to  the  sheriff,  for  sale,  of  any  of 
the  attached  i^roperty  for  which  an  undertaking  has  been  given,  and  may  proceed 
summarily  on  such  undertaking  to  enforce  the  delivery  of  the  property,  or  the  pay- 
ment of  the  money  due  upon  the  undertaking,  by  rules  and  attachment  as  in  cases 
of  contempt.     [51  v.  57,  §  222.] 

§  5.557. — The  court  may  order  the  officer  to  repossess  himself,  for  the  purpose  of 
selling  it,  of  any  of  the  attached  property  which  has  passed  out  of  his  hands  with- 
out having  been  sold  or  converted  into  money;  and  the  officer  shall,  under  such 
order,  have  the  same  power  to  take  the  property  as  he  would  have  under  an  order 
of  attachment.     [51  v.  57,  §  223.] 

§  5558. — If  personal  property  which  has  been  attached  be  claimed  by  any  person 
other  than  the  defendant,  the  officer  shall  have  the  validity  of  such  claim  tried; 
and  such  proceedings  muit  bj  had  thereon,  with  the  Uks  eifect,  as  if  the  property 
had  been  seized  upon  execution,  and  claimed  by  a  thu-d  person.     [51  v.  57,  §  224.] 

§  5559. — "When  several  attachments,  are  executed  upon  the  same  property,  or  the 
same  person  is  made  a  garnishee  by  several  p)arties,  the  court,  on  the  motion  of  any 
of  the  plaintiffs,  may  order  a  reference  to  ascertain  and  report  the  amounts  and 
priorities  of  the  several  attachments.     [51  v.  57,  §  225.] 

GENERAL  PROVISION'S. 

§  5560. — From  the  time  of  the  issue  of  the  order  of  attachment  the  court  shall 
be  deemed  to  have  acquired  jurisdiction,  and  to  have  control,  of  all  subsequent  pro- 
ceedings under  this  chapter;  and  if,  after  thte  issue  of  the  order,  the  defendant, 
being  a  person,  die,  or  being  a  corporation,  its  charter  expire  by  limitation,  for- 
feiture, or  otherwise,  the  ^proceedings  shall  be  carried  onp  but  in  all  such  cases, 
other  than  where  the  defendant  was  a  foreign  coriioration,  the  legal  representatives 
of  the  defendant  shall  be  made  jiarties  to  the  action.     [51  v.  57,  §  226.] 

§  5561. — The  defendant  may,  at  any  time  before  Judgment,  after  reasonable 
notice  to  the  plaintiff,  move  the  court  for  additional  security  on  the  part  of  the 
plaintiff;  and  if,  on  such  motion,  the  com't  is  satisfied  that  the  surety  in  the  plaint- 
iff's undertaking  has  removed  from  the  state,  or  is  not  sufficient  for  the  amomit  of 
the  undertaking-,  it  may  vacate  the  order  of  attachment,  and  direct  restitution  of 
any  property  taken  under  it,  unless,  in  a  reasonable  time,  to  be  fixed  by  the  court, 
sufficient  security  be  given  by  the  plaintiff.     [51  v.  57,  §  227.] 

§  5562. — The  defendant  may,  at  any  time  befoife  judgment,  upon  reasonable 
notice  to  the  plaintiff,  move  to  discharge  an  attachment,  as  to  the  whole  or  any 
of  the  proi^erty  attached;  and  the  motion  may  be  heard  and  decided  by  the 
court  at  any  term  or  regular  session  thereof,  or  it  may  be  made,  heard,  and  decided 
by  any  judge  thereof  in  vacation.     [51  v.  57,  §  228.] 

§  55G3.  —When  the  motion  is  made  upon  affidavits  on  the  part  of  the  defendant, 
or  papers  and  evidence  in  the  case,  but  not  otherwise,  the  plaintiff  may  oppose  the 
same  by  affidavits  or  other  evidence,  in  addition  to  the  evidence  on  which  l.io  order 
of  attachment  was  made.     [51  v.  57,  §  229.] 

SUPPLEMENTARY  PROVISIONS. 

§  5563a. — A  party  to  a  suit  affected  by  an  order  discharging  or  refusing  to  dis- 
charge an  order  of  attachment,  m.ay  file  a  petition  in  error  to  reverse,  vacate,  or 
modify  the  same,  as  in  other  cases;  and  the  original  action  shall  proceed  to  trial 
and  judgment  in  every  resi^ect,  as  though  no  petition  in  error  had  been  prosecuted. 
[54  V.  26,  §^  1,  4.] 


C54  OHIO. 

§  5563?). — When  an  order  discTiarging  an  order  of  attachment  is  made,  and  a 
party  affected  thereby  excepts  thereto,  the  court  or  judge  shall  fix  the  number  of 
days,  not  to  exceed  thirtj',  in  which  such  party  may  file  his  petition  in  error,  and 
during  which  it  shall  be  filed,  and  the  attached  property  held  by  the  sheriff  or  other 
officer;  the  party  who  files  the  petition  in  ei-ror  shall  give  an  imdertaking  to  the 
adverse  party,  with  surety  to  be  approved  by  the  clerk  of  the  district  court,  in 
double  the  amount  of  the  ai^praised  value  of  the  property  attached,  conditioned  to 
pay  such  adverse  party  all  damages  sustained  by  him  in  consequence  of  the  filing 
of  the  same,  in  the  event  of  the  discharge  of  the  order  of  attachment  by  the  court 
in  which  the  petition  in  error  is  filed,  because  the  same  was  wrongfully  obtained; 
and  when  such  petition  in  error  is  filed,  and  an  undertaking  given,  the  sheriff,  or 
other  officer,  shall  continue  to  hold  the  property  attached,  subject  to  the  further 
order  of  the  court.     [58  v.  14,  §  2.] 

§  5563c. — If  a  party  who  excepts  to  an  order  discharging  or  refusing  to  discharge 
an  order  of  attachment  die  within  the  time  limited  for  filing  his  petition  in  error, 
the  administrator  or  executor  of  such  deceased  party  may,  at  any  time  within 
thirty  days  after  his  appointment  and  ciualification,  file  his  petition  in  error,  and 
thereby  become  a  party  to  the  action,  and  shall  not  be  required  to  give  the  under- 
takir.g  required  by  the  ijreceding  section;  but  no  such  petition  in  error  shall  be 
filed  by  an  executor  or  administrator  after  one  year  from  the  time  such  order  is 
made.     [54  v.  26,  §  3.] 

ATTACHMENT  BEFORE  DEBT  DUE. 

§  5564. — A  creditor  may  bring  an  action  on  his  claim  before  it  is  due,  and  have 
an  attachment  against  the  jiroperty  of  the  debtor — 

1.  When  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  his  property, 
with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to  hinder  or  delay 
them  in  the  collection  of  their  debts;  or, 

2.  Is  about  to  make  such  sale,  conveyance,  or  disposition  of  his  property,  with 
such  fraudulent  intent;  or, 

3.  Is  about  to  remove  his  property,  or  a  material  part  thereof,  with  the  intent, 
or  to  the  effect,  of  cheating  or  defrauding  his  creditors,  or  of  hindering  or  delaying 
them  in  the  collection  of  their  debts.     [51  v.  57,  §  230.] 

§  5565. — The  attachment  authorized  by  the  last  section  may  be  granted  by  the 
court  in  which  the  action  is  brought,  or  by  a  judge  thereof;  but  before  such  action 
ehall  be  brought,  or  such  attachment  granted,  the  plaintiff,  or  his  agent  or  attor- 
ney, shall  make  an  oath,  in  writing,  showing  the  nature  and  amount  of  the  plaint- 
iff's claim,  that  it  is  just,  v^^hen  it  will  become  due,  and  the  existence  of  any  one 
of  the  grounds  for  attachment  enumerated  in  the  last  preceding  section.  {51  v.  57, 
§  231.] 

§  5566.— If  the  court  or  judge  refuse  to  grant  an  order  of  attachment,  the  action 
shall  be  dismissed,  but  ■\\ithout  i^rejudice  to  a  future  action;  and  in  all  such  actions 
application  for  an  attachment  must  be  made.     [51  v.  57,  §  232.] 

§  5567. — The  order  of  the  com-t  or  judge  granting  the  attachment  shall  si)ecify 
tie  amount  for  which  it  is  allowed,  not  exceeding  a  sum  sufficient  to  satisfy  the 
plaintiff's  claim  and  the  probable  costs  of  the  action.     [51  v.  57,  §  233.] 

§  5568. — The  order  of  attachment,  as  granted  by  the  court  or  judge,  shall  not  be 
issued  by  the  clerk  until  there  is  executed  in  his  office  such  undertaking  on  the  part 
of  the  i^laintiff  as  is  directed  by  section  fifty -five  hundred  and  twenty-three.  [51 
V.  57,  §  234.] 

§  5569. — The  plaintiff  in  such  action  shall  not  have  judgment  on  his  claim  be- 
fore it  becomes  due;  and  the  proceedings  on  attachment  may  be  conducted  without 
delay.     [51  v.  57,  §  235.] 

§  5570. — Proceedings  authorized  by  the  next  preceding  chapter  shall  govern 
attachments  under  this  chapter,  so  far  as  the  same  are  applicable.     [51  v.  57,  §  236.] 


Before  justices  of  the  peace— Sees.  6489-6525. 
In  collection  of  taxes — Sec.  1102. 


In  bastardy  proceedings— Sees.  5632-5636. 

Claims  out  of  thestate  collected  by — Sec.  7014. 

Exemptions — Notaries,  sec.  113;  cemetery,  sec.  1469;  unmarried  women,  sec 
6426;  beneficiary  funds,  sec.  5427;  benevolent  societies,  sec.  5428;  fire  companies, 
see.  5429;  head  of  family,  sec.  5430;  physicians,  etc.,  sec.  6431;  see  also  Stata. 
1882,  p.  197;  1884,  p.  148;  wages,  «ec.  5483. 


OREGON.  655 

OREGON.      . 

[General  Laws  1872,  and  Subsequent  Statutes.] 


CHAPTER  1.— TITLE  XV. 


OF   ATTACHMENT. 


§  142. — The  plaintiff,  at  the  time  of  issuing  the  summons,  or  any  time  after- 
ward, may  have  the  property  of  the  defendant  attached,  as  security  for  the  sat- 
isfaction of  any  judgment  that  may  be  recovered,  unless  defendant  give  seciu-ity  to 
pay  such  judgment,  as  in  this  chapter  provided,  in  the  following  cases: 

1.  In  an  action  upon  a  contract,  express  or  implied,  for  the  direct  payment  of 
money,  which  contract  is  made  or  is  payable  in  this  state,  and  is  not  secm-ed  by 
mortgage,  lien  or  pledge  upon  real  or  personal  property;  or,  if  so  secured,  that  such 
security  has  been  rendered  nugatory  by  the  act  of  the  defendant. 

2.  In  an  action  upon  a  contract,  express  or  implied,  against  a  defendant  not 
residing  in  this  state.     [Laws  187(5,  pp.  35,  3S.] 

§  143. — The  clerk  of  the  court  must  issue  the  writ  of  attachment  upon  receiving 
an  affidavit  by  or  on  behalf  of  plaintiff,  showing: 

1.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
such  indebtedness,  over  and  above  all  legal  set-offs  or  counter-claims)  upon  a  con- 
tract, exjiress  or  implied,  for  the  direct  payment  of  money,  and  that  such  contract 
was  made  or  is  payable  in  this  state,  and  that  the  x^ayment  of  the  same  has  not 
been  secured  by  any  mortgage,  lien  or  pledge  upon  real  or  personal  property;  or, 

2.  That  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of  such 
indebtedness,  as  near  as  may  be,  over  and  above  all  legal  set-offs  or  counter-claims), 
and  that  the  defendant  is  a  non-resident  of  the  state;  and 

3.  That  the  sum  for  which  the  attachment  is  asked  is  an  actual,  bona  fide,  exist- 
ing debt,  due  and  owing  from  the  defendant  to  the  plaintiff,  and  that  the  attach- 
ment is  not  sought,  and  the  action  prosecuted,  to  hinder,  delay  or  defraud  any 
creditors  of  the  defendant.     [Laws  1876,  pi^.  35,  30.] 

§  144. — Upon  filing  the  affidavit  with  the  clerk,  the  plaintiff  shall  be  entitled  to 
have  the  writ  issue,  as  soon  thereafter  as  he  shall  file  with  the  clerk  his  undertak- 
ing, with  one  or  more  sureties,  in  a  sum  not  less  than  one  hundred  dollars,  and 
equal  to  the  amount  for  which  the  i^laintiff  demands  judgment,  and  to  the  effect 
that  the  plaintiff  will  pay  all  costs  that  may  be  adjudged  to  the  defendant,  and  all 
damages  which  he  may  sustain  by  reason  of  the  attachment,  if  the  same  be  wrong- 
ful or  without  sufficient  cause,  not  exceeding  the  sum  si^ecified  in  the  undertaking. 
V\^ith  the  undertaking,  the  plaintiff  shall  also  file  the  affidavits  of  the  sureties, 
from  which  affidavits  it  must  appear  that  such  sureties  are  ciualified,  and  that  taken 
together  they  are  worth  double  the  amount  of  the  sum  specified  in  the  imdertak- 
ing,  over  all  debts  and  liabilities,  and  iDroperty  exempt  from  execution.  jSTo  person 
not  qualified  to  become  bail  upon  an  arrest,  is  qualified  to  become  security  in  an 
undertaking  for  an  attachment. 

§  145.— The  writ  shall  be  directed  to  the  sheriff  of  any  county  in  which  prop- 
erty of  such  defendant  may  be,  and  shall  require  him  to  attach  and  safely  keep  all 
the  property  of  such  defendant  within  his  county  not  exempt  from  execution,  or 
so  much  thefcof  as  may  he  sufficient  td  satisfy  the  plaintiff's  demand,  the  amount 
of  which  shall  be  stated  in  conformity  with  the  complaint,  together  with  costs  and 
expenses.  •  Several  writs  may  be  issued  at  the  same  time  to  the  sheriffs  of  different 
counties. 

§  14G. — The  rights  or  shares  which  such  defendant  may  have  in  the  stock  of 
any  association,  together  with  the  interests  and  profits  thereon,  and  all  other  prop- 
erty in  this  state  of  such  defendant,  not  exempt  from  execution,  shall  be  liable  to 
be  attached.  The  sheriff  shall  note  upon  the  writ,  the  date  of  its  delivery  to  him, 
and  shall  make  a  full  inventory  of  the  property  attached,  and  return  the  same 
with  the  writ. 

§  147. — The  sheriff  to  whom  the  writ  is  directed  and  delivered  shall  eyecute  the 
same  without  delay,  as  follows: 


656  OREGON. 

1.  Real  property  shall  be  attached  by  leaving  with  the  occupant  thereof,  or  if 
there  be  no  occupant,  in  a  conspicuous  place  thereon;  a  copy  of  the  -writ,  certified 
by  the  sheriff. 

2.  Personal  property,  capable  of  manual  delivery  to  the  sheriff,  and  not  in  the 
possession  of  a  third  person,  shall  be  attached  by  taking  it  into  his  cu.-tody. 

3.  Other  personal  propertj"  shall  be  attached,  by  leaving  a  certified  copy  of  the 
writ,  and  a  notice  specifying  the  j^rcperty  attached,  with  the  person  having  the 
possession  of  the  same,  or  if  it  be  a  debt,  then  with  thedebtor,  or  if  it  be  rights  or 
shares  in  the  stock  of  an  association  or  corporation,  or  interest,  or  profits  thereon, 
then  with  such  person  or  officer  of  such  association  or  corporation,  as  this  code 
authorizes  a  summons  to  be  served  upon. 

§  148. — From  the  date  of  the  attachment  until  it  be  discharged  or  the  writ  exe- 
cuted, the  plaintiff,  as  against  thu'd  persons,  shall  be  deemed  a  purchaser  in  good 
faith  and  for  a  valuable  consideration,  of  the  profierty,  real  or  personal,  attached, 
subject  to  the  conditions  prescribed  in  the  next  section  as  to  real  projoerty.  Any 
person,  association  or  corporation  mentioned  in  subdivision  3  of  section  1-17,  from 
the  service  of  a  copy  of  the  writ  and  notice  as  therein  provided,  shall,  unless  !.uch 
property-,  stock,  or  debts,  be  delivered,  transferred,  or  jjaid  to  the  sheriff,  be  liable 
to  the  plaintiff  for  the  amount  thereof,  until  the  attachment  be  discharged  or  any 
judgment  recovered  by  him  be  satisfied. 

§  149. — If  real  property  be  attached,  the  sheriff  shall  make  a  certificate  con- 
taining the  title  of  the  cause,  the  names  of  the  parties,  a  description  of  F.uch  real 
property,  and  a  statement  that  the  same  has  been  attached  at  the  suit  cf  the 
plaintiff,  and  the  date  thereof.  Within  ten  days  of  the  date  of  the  attachment, 
the  sheriff  shall  deliver  such  certificate  to  the  county  clerk  of  the  county  in  which 
such  real  property  ii  situated,  who  shall  file  the  same  in  his  office,  and  record  it  in 
a  book  to  be  kept  for  that  j)urpose.  When  such  certificate  is  so  filed  for  record, 
the  lien  in  favor  of  the  plaintiff  shall  attach  to  the  real  property  described  in  the 
certificate  from  the  date  of  the  attachment,  but  if  filed  afterward  it  shall  only 
attach  as  against  third  persons,  from  the  date  of  such  subsequent  filing.  V.\hen- 
ever  such  lien  shall  be  discharged,  it  shall  be  the  duty  of  the  county  clerk,  when 
reciuested,  to  record  the  transcript  of  any  order,  entry  of  satisfaction  of  judgment, 
or  other  proceeding  of  record,  whereby  it  appears  that  such  lien  has  been  discharged, 
in  the  book  mentioned  in  this  section.  The  clerk  shall  also  enter  on  the  margin  cf 
the  page  on  vrhich  the  certificate  is  recorded,  a  minute  of  the  discharge,  and  the 
page  and  book  where  recorded. 

§  150. — WTienever  the  sheriff  with  a  writ  of  attachment  against  the  defendant, 
shall  apply  to  anj'  person  or  officer  mentioned  in  subdivision  3  of  section  147,  for 
the  piu-pose  of  attaching  any  property  mentioned  therein,  such  person  or  ofacer 
shall  fm-nish  Htm  -ndth  a  certificate,  designating  the  amoimt  and  description  of  aiiy 
property  in  his  possession  belonging  to  the  defendant,  cr  any  debt  ov.-ing  to  the 
defendant,  or  the  number  of  rights  or  shares  of  the  defendant  in  the  stock  of  the 
association  or  corporation,  ■with  any  interest  or  profits  or  incumbrance  thereon.  If 
Buch  person  or  officer  refuse  to  do  so,  or  if  the  certificate  when  given  be  unsatis- 
factory to  the  plaintiff,  he  may  be  required  by  the  court  or  judge  thereof  when  the 
action  is  pending,  to  appear  before  him  and  be  examined  on  oath  concerning  the 
same,  and  disobedience  to  such  order  may  be  punished  as  contempt. 

§  151. — If  any  of  the  property  attached  be  perishable,  the  sheriff  shall  sell  the 
same  in  the  manner  in  which  property  is  sold  on  execution.  The  i:)roceeds  thereof 
and  other  property  attached,  shall  be  retained  by  him  to  answer  any  judgment 
that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution  upon 
another  judgment.  Personal  property  mentioned  in  subdivision  3  of  section  147, 
may  be  deliv  'red,  transferred,  or  paid  to  the  sheriff,  without  suit,  and  his  receipt 
therefor  shall  be  a  sufficient  discharge  accordingly. 

§  152.  — The  sheriff  may  deliver  any  of  the  property  attached  to  the  defendant, 
or  to  any  other  person  claiming  it,  upon  his  giving  a  ■written  undertaking  therefor, 
executed  by  two  or  more  sufficient  sureties,  engaging  to  redeliver  it,  or  pay  the 
value  thereof  to  the  sheriff,  to  whom  execution  upon  a  judgment  obtained  by  the 
plaintiff  in  that  action  may  be  issued. 

§  1.53. — If  an  action  be  brought  upon  such  vmdertaking  against  the  principal  or 
his  sureties,  it  shall  be  a  defense  that  the  property  for  which  the  imdertaking  was 
given,  did  not,  at  the  execution  of  the  ■writ  of  attachment,  belong  to  the  defendant 
against  whom  it  was  issued. 

§  154. — If  any  personal  property  attached  be  claimed  by  a  third  person  as  his 
property,  the  sheriff  may  summon  a  jury  to  try  the  validity  of  such  claim,  and 


OREGON.  657 

the  same  proceedings  shall  be  had  thereon,  with  the  like  effect,  as  in  cases  of  seiz- 
ure upon  execution. 

§  1-55. — If  judgment  be  recovered  by  the  plaintiff,  and  execution  issue  thereon, 
the  sheriff  shall  apply  the  jiroperty  attached  by  him,  or  the  proceeds  thereof, 
upon  the  execution,  and  if  there  be  any  of  such  property  or  proceeds  remaining 
after  satisfjing  such  execution,  he  shall,  upon  demand,  deliver  the  same  to  the 
defendant. 

§  156. — If  judgment  be  not  recovered  by  the  plaintiff,  all  the  property  attached, 
or  the  proceeds  thereof,  or  the  undertaking  therefor,  shall  be  returned  to  the 
defendant,  upon  his  serving  u^oon  the  sheriff  a  certified  copy  of  the  order  discharg- 
ing the  attachment. 

§  157. — ^\Tienever  the  defendant  shall  have  appeared  in  the  action,  he  may 
apply,  upon  notice  to  the  plaintiff,  to  the  court  or  judge  where  the  action  is  x^end- 
ing,  or  to  the  clerk  of  such  court,  for  an  order  to  discharge  the  attachment  upon 
the  execution  of  the  undertaking  mentioned  iu  the  next  section;  and  if  the  aijpli- 
cation  bo  allowed,  all  the  proceeds  of  sales,  and  property  remaining  in  his  hands, 
shall  be  released  from  the  attacliment  and  delivered  to  the  defendant,  upon  his 
serving  a  certified  copy  of  the  order  on  the  sheriff. 

§  153. — Upon  such  application,  the  defendant  shall  deliver  to  the  court  or  judge 
to  whom  the  application  is  made,  an  undertaking  executed  by  one  or  more  sureties, 
resident  householders  or  freeholders  of  this  state,  to  the  effect  that  the  sureties 
wiU  pay  to  the  plaintiff  the  amount  of  the  judgment  that  may  be  recovered  against 
the  defendant  in  the  action.  If  the  plaintiff  demand  it,  the  sureties  shall  be 
required  to  justifj'  in  the  same  manner  as  bail  uj^on  an  arrest. 

§  159. — The  defendant  may,  at  any  time  before  judgment,  except  where  the  cause 
of  attachment  and  the  cause  of  action  are  the  same,  apply  to  the  court  or  judge 
thereof,  where  the  action  is  pending,  to  discharge  the  attachment,  in  the  manner 
and  with  the  effect  as  provided  in  sections  128  and  129,  for  the  discharge  of  a 
defendant  from  arrest. 

§  160. — When  the  -writ  of  attachment  shall  be  fully  executed  or  discharged,  the 
sheriff  shall  return  the  same,  with  his  proceedings  indorsed  thereon,  to  the  clerk 
of  the  court  where  the  action  was  commenced. 

§  IGl.  —The  order  provided  for  in  section  150,  shall  require  such  person  or  officer 
to  appear  before  such  court  or  judge  at  a  time  and  place  therein  stated.  In  the 
proceedings  thereafter  upon  such  order,  such  person  or  association,  or  corporation, 
shall  be  known  as  the  garnishee. 

§  162. — After  the  allowance  of  the  order,  and  before  such  garnishee  or  officer 
thereof,  shall  be  thereby  required  to  appear,  or  mthin  a  time  to  b^sjiecified  in 
the  order,  the  plaintiff  may  serve  upon  such  garnishee  or  officer  thereof,  wi-itten 
allegations  and  intei-rogatories  touching  any  of  the  property  liable  to  attachment, 
as  the  property  of  the  defendant,  as  provided  in  subdivision  .3  of  section  147,  and 
to  which  such  garnishee  or  officer  thereof  is  required  to  give  a  certificate  as  x^ro- 
vided  in  section  150. 

§  163. — On  the  day  when  the  garnishee  or  officer  thereof  shall  be  required  to 
appear  before  the  coiart  or  judge  thereof,  he  shall  return  the  allegations  and  inter- 
rogatories of  the  plaintiff,  to  the  court  or  judge,  with  his  written  answer  thereto, 
unless  for  good  cause  shown,  a  further  time  be  allowed.  Such  answer  shall  be  on 
oath,  and  shall  contain  a  full  and  direct  response  to  all  the  allegations  and  inter- 
rogatories. 

§  164. — If  the  garnishee  or  officer  thereof  fail  to  answer,  the  court  or  judge 
thereof,  on  motion  of  the  lolaintiff,  may  compel  him  to  do  so,  or  the  plaintiff  may, 
at  any  time  after  the  entry  of  judgment  against  the  defendant  in  the  action,  have 
judgment  against  the  garnishee  for  want  of  such  answer.  In  no  case  shall  judg- 
ment be  given  against  the  garnishee  for  a  greater  amount  than  the  judgment  against 
the  defendant  in  the  action. 

§  165.  —The  plaintiff  may  except  to  the  answer  of  the  garnishee  or  officer 
thereof  for  insufficiency,  within  such  time  as  may  he  prescribed  or  allowed,  and  if 
the  same  be  adjudged  insufficient,  such  garnishee  or  officer  may  be  allowed  to 
amen<l  his  answer,  on  such  terms  as  may  be  proper,  or  judgment  may  be  given  for 
the  plaintiff  as  for  want  of  answer,  or  such  garnishee  or  officer  may  be  compelled 
to  make  a  sufficient  answer. 

§  166.— The  plaintiff  may  reply  to  the  whole  or  part  of  the  answer  within  such 
time  as  may  be  prescribed  or  allowed,  and  the  issues  arising  thereon  shall  be  tried 
as  ordinary  issues  of  fact  between  plaintiff  and  defendant.     If  the  ans'ver  I  j  not 
II  Atiacujient— 17. 


658  PENNSYLVANIA. 

excepted  or  replied  to,  ■wdtliin  the  time  prescribed  or  allowed,  it  shall  be  taken  to 
be  true  and  sufficient. 

§  167.— If  by  the  answer  it  shall  appear,  or  if  upon  trial  it  shall  be  found  that 
the  garnishee,  at  the  time  of  the  service  upon  him  or  the  officer  thereof,  of  the 
copy  of  the  writ  of  attachment  and  notice,  had  any  property  of  the  defendant's 
liable  to  attachment  as  provided  in  subdivision  3  oi  section  147,  and  as  to  which 
such  garnishee  or  officer  thereof  is  required  to  give  a  certificate,  as  pro\-ided  in 
section  150,  beyond  the  amoimt  admitted  in  the  certificate,  or  in  any  amount  if 
the  certificate  was  refused,  judgment  may  be  given  against  such  garnishee  for  the 
value  thereof  in  money.  The  garnishee  may  at  any  time  before  judgment  dis- 
charge himself  by  delivering,  paying  or  transferring  the  property  to  the  sheriff. 

§  168. — Executions  may  issue  upon  judgments  against  a  garnishee  as  upon  ordi- 
nary judgments  between  plaintiff  and  defendant,  and  costs  and  disbursements 
shall  be  allowed  and  recovered  in  like  manner.  Witnesses,  including  the  defend- 
ant and  garnishee  or  officer  thereof,  may  be  required  to  ap23ear  and  testify  upon 
such  proceedings  against  a  garnishee,  as  upon  the  trial  of  an  issue  of  fact. 

§  169. — The  court  or  judge  thereof  in  his  discretion  may,  at  the  time  of  the 
application  of  the  plaintiff  for  the  order  provided  for  in  section  150,  and  at  any 
time  thereafter  before  judgment  against  the  garnishee,  by  order  restrain  the  gar- 
nishee from  paying,  transferring,  or  in  any  manner  disposing  of  or  injuring  any  of 
the  property  of  the  defendant,  alleged  by  the  plaintiff  to  be  in  the  garnishee's  pos- 
session, control,  or  owing  by  him  to  the  defendant,  and  disobedience  to  such  order 
may  be  punished  as  a  contempt. 

§  170. — The  proceedings  provided  for  in  titles  XIII,  XIV,  and  XV,  shall  be 
known  as  ]3rovisional  remedies. 


Before  justices  of  the  peace— Pages  463,  464,  §§  7,  12,  13. 

Exemptions— Page  164,  Sec.  279;  cemeteries,  Stats.  1880,  p  20,  and  1882,  p.  32. 


PENNSYLVANIA. 

[Brightley's  Paedon's  Digest.] 


ACTION'S   PERSONAL. 

OF    THE    WRIT    OF    ATTACHMENT. 

§  71. — It  shall  be  the  duty  of  any  prothonotary  of  a  court  of  record  in  Pennsyl- 
vania to  issue  an  attachment  against  any  defendant  or  defendants,  upon  the  appli- 
cation of  any  plaintiff  or  plaintiffs,  upon  proof,  by  the  affidavit  of  said  plaintiff,  or 
any  of  them,  or  of  any  other  person  for  him,  her,  or  them,  that  said  defendant  or 
defendants  are  justly  indebted  to  him,  her,  or  them,  in  a  sum  exceeding  one  hun- 
di-ed  dollars,  the  nature  and  amount  of  such  indebtedness  being  set  forth  in  such 
affidavit,  and  that  said  party  defendant  is  about  to  remove  his,  her,  or  their  prop- 
erty out  of  the  jm'isdiction  of  the  court  in  M-hich  said  attachment  is  applied  for, 
with  intent  to  defraud  his,  her,  or  their  creditors;  or  that  said  party  defendant  has 
property,  rights  in  action,  or  interest  in  any  public  or  corporate  stock,  money,  or 
evidences  of  debt,  which  he,  she,  or  they  fraudulently  conceal;  or  that  said  party 
defendant  has  or  have  assigned,  disposed  of,  or  removed,  or  is  about  to  assign, 
dispose  of,  or  remove  any  such  j)roperty,  money,  rights  in  action,  interest  in  public 
or  corporate  stock,  or  evidences  of  debt,  with  the  intent  to  defraud  his,  her,  or  their 
creditors;  or  that  he,  she,  or  they  fraudulently  contracted  the  debt  or  incurred 
the  obligation  for  which  such  claim  is  made:  Provided,  that  before  such  attach- 
ment shall  issue,  the  party  plaintiff,  or  some  one  in  his,  her,  or  their  behalf,  shall 
execute  and  file  with  the  said  prothonotary  a  bond,  in  a  penalty  of  at  least  double 


PENNSYLVANIA.  659 

the  amount  claimed,  Tvdth  good  and  sufficient  surety  (to  be  approved  by  said  pro- 
thonotary  or  one  of  the  judges  of  the  court  of  common  pleas  of  the  county),  con- 
ditioned that  if  the  plaintiff  or  plaintiffs  shall  fail  to_  prosecute  his,  her,  or  their 
action  with  effect,  and  recover  a  judgment  against  said  defendant  or  defendants, 
he,  she,  or  they  shall  pay  to  said  defendant  or  defendants  all  legal  costs  and  dam- 
ages which  said  party  defendant  may  sustain  by  reason  of  said  attachment;  and 
which  said  bond  shall  remain  in  the  office  of  said  prothonotary  for  the  use  of  any 
party  injured  as  aforesaid.     [Amended  Stats.  1878,  p.  147.] 

§  72. — In  all  cases  of  arrest  for  homicide,  or  for  assault  and  battery,  resulting  in 
great  bodily  harm  to  the  person  assaulted,  so  that  his  or  her  life  is  thereby  imper- 
iled, wherein  the  person  arrested  has  been  or  shall  be  held  to  bail,  and  has  made  or 
shall  make  default,  whereby  his  or  her  recognizance  has  been  or  shall  be  forfeited, 
and  has  fled  or  shall  flee  the  jurisdiction  of  the  court,  it  shall  and  may  be  lawful 
for  the  person  so  injured  as  aforesaid,  his  or  her  executors  or  administrators,  to 
begin  his,  her,  or  their  action  for  damages,  by  filing,  in  the  proper  court,  a  certified 
copy  of  the  record  in  such  criminal  proceeding,  together  with  an  aiiidavit  that  the 
defendant  has  left  or  is  about  to  leave  the  jm-isdiction  of  the  court;  whereupon  the 
said  court  shall  award  and  issue  an  attachment  against  all  and  singular  the  goods 
and  chattels,  lands  and  tenements,  rights  and  credits  of  the  defendant,  or  any  part 
thereof,  within  the  jurisdiction  of  the  said  court;  which  attachment  shall  be  served 
and  shall  have  the  same  effect,  and  the  proceedings  thereunder  against  the  defend- 
ant, and  against  any  garnishee  or  garnishees,  shall  be  the  same  as  in  cases  of  foreign 
attachment. 

§  73. — The  provisions  of  this  act  shall  apply  to  the  city  and  county  of  Phila- 
delphia. 

OF  THE  SERVICE  AND   EETURN. 

§  74. — Every  such  attachment  shall  be  made  returnable  on  the  first  return  day 
of  said  court  next  after  the  time  of  issuing  thereof,  and  be  served  by  the  sheriff  of 
the  proper  county,  or  by  some  general  or  special  deputy  by  him  made,  by  attach- 
ing so  much  of  the  money,  stocks,  rights  in  action,  evidences  of  debt,  or  other 
property  of  said  party  defendant,  not  exempt  by  law  from  sale  upon  execution,  as 
will  be  sufficient  to  pay  the  debt  demanded,  with  costs;  and  shall  deliver  to  said 
defendant  or  defendants,  or  one  of  tliem,  a  co'pj  of  said  attachment,  with  an  in- 
ventory of  the  property  or  other  thing  attached,  if  said  party  defendant  can  be 
found  within  the  county,  and  if  not  found,  then  by  leaving  a  copy  of  the  same  at 
his,  her,  or  their  residence,  with  some  adult  member  of  the  family  where  he,  she, 
or  they  reside;  or  if  said  party  defendant  do  not  reside  in  the  county  and  cannot 
be  found,  then  by  leaving  a  copy  of  said  attachment  and  inventory  with  the  person 
in  whose  possession  or  care  said  property  may  be,  or  in  whose  hands  it  may  be  at- 
tached; and  in  case  such  money,  rights  in  action,  interest  in  public  or  corporate 
stock,  evidences  of  debt,  or  other  property  shall  be  found  in  the  hands  or  posses- 
sion of  any  person,  persons,  or  corporation  other  than  the  party  defendant,  such 
person,  persons,  or  corporation  shall  be  summoned  as  a  garnishee. 

§  75.  — It  shall  be  the  duty  of  the  officer  serving  such  attachment  to  take  the 
property  attached  into  his  possession,  when  the  same  is  capable  of  manual  seizure, 
and  when  not,  the  same  shall  be  bound  by  such  attachment  in  the  hands  or  pos- 
session of  such  party  from  whom  it  is  due  or  owing,  or  whose  duty  it  is  to  account 
for  the  same,  unless  the  party  defendant,  or  some  one  for  him,  her,  or  them,  shall 
enter  into  a  bond,  with  sufficient  surety,  to  be  a^Dproved  by  the  court  from  which 
said  attachment  shall  issue,  or  the  prothonotary  thereof,  in  double  the  amount  of 
the  debt  or  demand  claimed,  conditioned  that  in  the  event  of  the  jjlaintiff  or 
l^laintiffs  recovering  judgment  in  said  attachment,  that  he,  she,  or  they  will  pay 
the  debt  and  costs  at  the  expiration  of  the  stay  of  execution  on  sums  of  like 
amount  given  to  freeholders,  or  that  he,  she,  or  "they  will  surrender  up  the  said 
property  in  as  good  condition  as  when  attached,  to  any  officer  having  an  execution 
against  said  party  defendant  on  any  judgment  rendered  in  said  attachment  in  favor 
of  the  plaintiff. 

§70. — That  section  nine  of  an  act,  entitled  "an  act  extending  the  chancery 
powers  of  and  to  the  jurisdiction  and  proceedings  in  certain  courts,"  approved  the 
10th  day  of  AjDril,  Anno  Domini  1848,  and  also  section  first  of  an  act,  entitled  "  an 
act  extending  the  .sheriff's  interpleader  act  of  Philadelphia  city  and  county  to  the 
several  counties  of  this  commonwealth,  approved  the  10th  day  of  ISIarch,  Anno 
Domini  1858,  be  extended  and  applied  to  any  claim  which  has  been  or  shall  be 
made  by  any  person  or  persons,  not  being  the  parties  against  whom  process  has 
issued,  to  any  goods  or  chattels  taken  or  entitled  to  be  taken,  by  or  under  attach- 
ment issued  under  the  act,  entitled  "an  act  relative  to  fraudulent  debtors,"  ap- 
proved the  17th  day  of  March,  Anno  Domini  18G9:  Provided,  that  when  the 


660  PENNSYLVANIA. 

proper  court  stall  not  be  in  session,  any  la-w  judge  thereof  shall  have  power,  at 
chambers,  to  hear  and  determine  any  rule  to  show  cause,  and  to  make  such  order 
as  shall  appear  to  be  proper  and  just,  under  the  circumstances  of  the  case. 

OF  THE  SUBSEQUENT  PROCEEDINGS. 

§  77. — In  case  of  a  personal  service  of  said  attachment  upon  the  partv  defend- 
ant, or  if  he,  she,  or  they  shall  be  residents  of  the  county  at  the  time  the  attach- 
ment was  issued,  or  shall  appear  to  the  action,  the  court  shall  proceed  in  the  case 
in  like  manner  as  in  a  case  of  summons  for  debt  regularly  issued  and  duly  served; 
and  in  case  there  shall  not  l)e  a  personal  service,  residence,  or  appearanceas  afore- 
said, the  plaintiff  or  plaintiffs  may  at  any  time  after  the  first  day  of  the  second 
tciTU  after  issuing  said  attachment,  proceed  in  like  manner  against  the  party  de- 
fendant and  against  the  garnishee  or  garnishees,  by  rules,  interrogatories,  or  other- 
wise, as  is  now  practiced  in  cases  of  foreign  attachment  and  attachment  execution; 
and  the  said  com-t  shall  have  like  powers  to  decree  the  sale  of  perishable  property 
as  they  now  have  in  cases  of  foreign  attachment. 

§  7S. — In  case  two  or  more  attachments  are  issued  against  the  same  party  de- 
fendant, the  one  first  in  the  hands  of  the  proper  ofiicer  for  service  shall  have  the 
prior  lien,  and  so  on  as  to  other  writs  issued  in  pursuance  of  this  act,  in  the  order 
of  time  in  which  they  are  issued  to  said  officer. 

OF   THE   DISSOLUTION   OF   THE  ATTACHIIENT. 

§  79. — In  all  cases  in  which  a  writ  of  attachment  shall  have  issued  pursuant  to 
the  foregoing  provisions,  it  shall  be  lawful  for  the  defendant  to  apply  to  the  court 
of  common  pleas  of  the  proper  county,  when  in  session,  or  to  a  judge  thereof  in 
vacation,  to  dissolve  said  attachment;  and  uj^on  the  hearing  of  such  ajiplication, 
the  said  court,  or  judge  thereof,  in  vacation,  shall  have  i^ower  to  hear  e^-idence  or 
determine  the  truth  of  the  allegations  contained  in  the  affidavit  upon  which  said 
writ  issued,  and  to  dissolve  or  continue  the  time  [hen]  of  such  attachment,  accord- 
ing as  he  shall  find  the  allegation  of  such  affidavit  sustained  or  otherwise:  Provided, 
that  nothing  contained  in  this  act  shall  interfere  with  the  rights  of  exemption  of 
projicrty  luxder  the  existing  laws  of  this  common'^'»alth. 


DOIVIESTIC  ATTACHIIEXT. 

OF  THE  WRIT  OF  D01IE3TIC  ATTACHMENT,   AND  THE  PROCEEDINGS  THEREON, 

§  1. — Writs  of  domestic  attachment  may  be  issued  by  the  courts  of  common 
pleas  of  the  county  in  which  any  debtor,  being  an  inhabitant  of  this  common- 
wealth, may  reside,  if  such  debtor  shall  have  absconded  from  the  place  of  his  usual 
abode,  within  the  same,  or  shall  have  remained  absent  from  this  commonwealth, 
or  shall  have  confined  himself  in  his  own  house,  or  concealed  himself  elsewhere, 
with  design,  in  either  case,  to  defraud  his  -creditors;  and  the  like  proceedings  may 
be  had  if  any  debtor,  not  having  become  an  inhabitant  of  this  commonwealth, 
shall  confine  or  conceal  himself  within  the  county,  with  intent  to  avoid  the  service 
of  process  and  to  defraud  his  creditors. 

§  2. — But  no  such  writ  shall  be  issued,  except  upon  oath  or  affirmation,  previ- 
ously made,  by  a  creditor  of  such  person,  or  by  some  one  in  his  behalf,  of  the  truth 
of  his  debt,  and  of  the  facts  upon  which  the  attachment  shall  be  founded,  which 
oath  or  affirmation  shall  be  filed  on  [of]  record. 

§  3. — The  ^vrit  aforesaid  shall  be  made  according  to  the  following  form,  viz. : 

county,  ss.     The  commonwealth  of  Pennsylvania:   To  the  Lieriff  of 


county,  greeting:    ^^'hereas,  A.  B.,  late  of  the  • coimty ,  has 

absconded  from  the  place  of  his  usual  abode  in  said  county  [reciting  the  matters 
of  fact  contained  in  the  affida\at,  as  the  case  may  be],  wdth  design  to  defraud  his 
creditors,  as  it  is  said;  therefore,  we  command  you,  that  you  attach  all  and  sinj"'- 
lar  the  goods  and  chattels,  lands  and  tenements  of  the  said  A.  B. ,  within  your 
bailiwick,  in  whose  hands  or  possession  soever  the  same  may  be,  for  the  benefit  of 
C.  D. ,  who  sues  this  wi-it,  and  of  the  other  creditors  of  the  said  A.  B. ;  ar.'I  we 
f m-ther  command  j'ou,  that  you  cause  the  goods  and  chattels  attached  by  virtu  •  of 
this  writ,  forthwith  to  be  secured  and  appraised,  and  an  inventory  thereof  to  be 
made:  and  how  j'ou  shall  have  executed  this  writ,  make  known  to  omi  jr.dges  at 

in  the  county  aforesaid,  on  the  day  of  ,  and  ha"e  '^ou  th"n 

and  there  this  writ,  together  with  the  said  inventory  and  apprrisement.  "Vitn-ss, 
etc. 


PENNSTL  VA  NI  A.  6  G 1 

§4. — Every  writ  of  domestic  attachment  Bhall  contain  a  clause  requiring  the 
sheriff,  or  other  officer,  to  summon  the  garnishee,  or  person  in  whose  hands  any  of 
the  defendant's  money  or  other  effects  may  happen  to  be,  to  appear  before  the 
coiut  from  which  the  ^\Tit  shall  issue,  at  the  day  and  place  mentioned  in  the  said 
writ,  to  abide  the  orders  of  the  court  in  the  premises. 

§  5.— If  real  estate  be  attached  mthin  the  county  in  which  such  writ  of  attach- 
ment shall  issue,  it  shall  be  the  duty  of  the  sheriff  to  file  a  description  thereof,  and 
cause  the  same  to  be  entered  upon  the  docket  of  the  prothonotary  of  the  court  out 
of  which  such  attachment  issued,  in  the  manner  provided  by  law  in  the  case  where 
real  estate  is  attached  by  virtue  of  a  writ  of  foreign  attachment;  and  also  to  cause 
a  copy  of  said  attachment,  by  him  certified,  to  be  put  up  in  some  conspicuous  place 
on  such  real  estate;  and  where  there  is  a  tenant,  it  shall  be  the  duty  of  the  sheriff 
to  leave  a  copy  of  the  writ  with  him,  or  any  other  person  in  actual  possession, 
holding  under  the  defendant,  and  to  summon  him  as  garnishee. 

§  G. — It  shall  be  lawful  for  any  other  creditor  of  such  person,  upon  affidavit  of 
his  debt  as  aforesaid,  to  suggest  his  name  upon  the  record,  and  thereupon,  such 
creditor  may  proceed  to  prosecute  the  said  vrrit,  if  the  person  suing  the  same  shall 
refuse  or  neglect  to  proceed  thereon,  or  if  he  shall  fail  to  establish  his  right  to 
prosecute  the  same,  as  a  creditor  of  the  defendant. 

§  7. — In  case  any  perishable  goods  shall  be  attached  by  virtue  of  such  writ,  it 
shall  be  lawful  for  the  court,  if  in  session,  or  for  any  judge  thereof,  in  vacation,  on 
the  application  of  any  creditor  as  aforesaid,  to  order  the  same  to  be  sold  by  the 
sheriff,  and  the  moneys  arising  from  such  sale  shall  be  received  by  the  sheriff,  and 
paid  over  by  him  to  the  trustees,  to  be  appointed  as  hereinafter  mentioned. 

§  8. — It  shall  be  lawful  for  any  creditor,  as  aforesaid,  to  sue  out  from  the  said 
court,  and  -^^-ith  the  original  writ,  or  afterward,  other  writs  of  attachment,  into 
any  other  county  in  which  such  debtor  may  have  goods  or  chattels,  lands  or  tene- 
ments. 

§  9.— "Whenever  any  testatum  writ  of  attachment  shall  be  issued  as  aforesaid, 
the  garnishee  in  whose  hands  any  goods  or  effects  shall  be  attached,  as  aforesaid,  shall 
be  summoned  to  appear  before  the  court  of  common  pleas  [of]  the  county  in  which 
he  shr.U  reside. 

§  10. — It  shall  be  the  duty  of  the  sheriff  to  whom  any  testatum  writ  of  attach- 
ment shall  be  directed  as  aforesaid  to  execute  the  same  in  like  manner  as  if  the  WTit 
had  issued  from  the  co\u-t  of  common  pleas  of  his  own  county,  and  he  shall  cause 
the  same  to  be  entered  upon  the  docket  of  the  prothonotary  of  such  court,  in  the 
manner  provided  in  the  case  of  testatum  executions,  together  with  a  description  of 
any  real  estate  which  he  may  attain  [attach]  by  virtue  thereof;  and  it  shall  be  his 
duty  to  make  one  return,  with  the  said  writ,  to  the  court  from  which  it  shall  have 
issued,  and  a  duplicate  of  such  return  to  the  court  of  common  pleas  of  his  o-(vn 
county. 

§  11. — The  coiu-t  of  common  pleas  of  the  county  into  which  any  testatum  -writ  of 
attachment  shall  be  sent  as  aforesaid,  shall  have  power  to  make  all  such  interlocu- 
tory orders  respecting  the  garnishee,  and  for  the  delivery,  custody,  and  sale  of  any 
personal  property  attached  within  their  countj%  as  they  might  do  in  the  case  of  an 
attachment  issuing  from  such  court;  and  it  shall  be  lawful  for  such  court  to  made 
all  necf ssar;''  orders  and  decrees  for  the  x^urpose  of  compelling  answers  to  interrog- 
atories, by  an;' jDerson  v: 'thin  their  jurisdiction,  and  [the]  delivery  of  all  property 
within  '^^h^ir  ."  .  .sdicf  c:l  to  the  trustees  appointed  in  such  attachment. 

§  12. — _'t  shall  be  lav.iul  for  the  court  issuing  any  writ  of  attachment  as  afore- 
said, at  any  time  before  the  final  decree  for  distribution,  on  the  application  of  the 
defendant,  supported  by  his  oath  or  affirmation,  denying  the  allegations  upon 
which  the  attachment  was  founded,  to  gi-ant  a  rule  upon  the  creditors  suing  or 
l^rosecnting  the  writ,  to  show  cause  why  the  attachment  should  not  be  dissolved; 
and  the  court  maj^,  at  the  same  time,  make  an  order,  staying  all  further  proceed- 
ings by  the  truster's;  and  upon  the  hearing  of  such  rule,  if  the  court  sl^all  be 
satisfied  that  the  clerendant  was  not  liable  to  the  attachment,  they  shall  dissolve 
the  same,  either  absolutely  or  upon  such  terms  as  shall  be  ecjuitable  and  just: 
Provided,  that  no  order  of  the  court,  dissolving  an  attachment  as  aforesaid,  shall 
have  the  effect  of  invalidating  any  sale  of  the  estate  of  the  defendant  made  by 
such  trustees,  :'.--i  cor.^ormity  vath  la'v,  or  any  payment  to  such  trustees,  made  as 
aforesaid. 

Z  13.  — It  shall  be  lawful  for  .h ;  court  by  whom  the  attachments  as  aforesaid  may 
be  dissolved  to  make  auch  an  order  for  the  payment  of  the  costs,  either  by  the 


662  PENNSYLVANIA. 

creditors  suing  or  prosecuting  such  -writ,  or  by  the  defendant  therein,  as  shall  be 
equitable  and  just,  under  all  the  circumstances  of  the  case. 

§  14. — Xo  second  or  other  attachment,  excepting  such  as  shall  be  issued  into  an- 
other county,  as  hereinbefore  provided,  shall  be  issued  against  or  served  upon  the 
estate  or  effects  of  the  same  defendant,  unless  the  first  attachment  be  not  executed, 
or  be  dissolved  by  the  court. 

§  15.  — The  death  of  the  defendant  after  the  issuing  of  the  attachment  shall  not 
abate  or  otherwase  affect  the  proceeding  thereon,  but  the  same  shall  be  continued 
and  concluded,  in  like  manner  as  if  such  defendant  had  lived:  Provided,  that  no- 
tice of  the  pendency  of  the  attachment  be  given  to  the  executors,  administrators, 
or  heirs  of  such  defendant. 

§  16. — Any  person  aggrieved  by  any  definite  [definitive]  decree  of  any  court  of 
common  i^leas,  in  any  case  of  domestic  attachment,  as  aforesaid,  may  appeal  from 
the  same  to  the  supreme  com-t,  in  the  i:)roper  district:  Provided,  such  appeal  be 
entered  within  one  year  after  such  decree:  And  provided  also,  that  in  all  cases, 
the  party  appealing  shall  first  give  secmity  in  such  sum  as  the  said  court  of 
common  pleas  shall  direct,  conditioned  to  prosecute  such  appeal  ^^ith  effect,  and 
shall  also  make  oath  or  affirmation  that  such  appeal  is  not  intended  for  delay. 

APPOINTMENT   OF   TErSTEE.S:    THEIR  POWEES  AND   DUTIES. 

§  17. — On  the  return  of  the  ■writ  as  aforesaid,  the  coiu-t  shall  appoint  three  hon- 
est and  discreet  men,  not  being  creditors  of  the  defendant,  to  be  trustees  of  the 
estate  of  the  defendant;  who,  before  proceeding  upon  the  duties  of  their  appoiat- 
ment,  shall  make  oath  or  affirmation,  before  some  i^erson  authorized  to  administer 
oaths,  well  and  truly  to  execute  the  trust  reposed  in  them,  according  to  the  best  of 
their  skiU.  and  understanding,  which  oath  or  affirmation,  certified  by  the  person 
before  whom  it  was  taken,  shall  be  filed  hi  the  office  of  the  prothonotary  of  the 
said  court. 

§  18. — If  any  trustee  as  aforesaid  shall  decline  to  undertake  the  said  office,  or 
shall  resign  the  same,  or  die,  or  become  incapable  to  execute  the  same,  the  court 
shall  appoint  another  suitable  person  to  supply  the  vacancy. 

§  19. — It  shall  be  lawful  for  the  court,  at  the  time  of  the  appointment  of  the 
said  trustees,  or  at  any  time  afterward,  to  require  the  said  trustees  to  give  secu- 
rity, in  such  form  and  amount  as  the  com-t  shall  direct,  for  the  due  execution  of 
the  trust. 

§  20. — It  shall  be  the  duty  of  the  officer  who  shall  have  taken  possession  of  any 
money  or  other  personal  jiroperty  of  the  defendant  by  virtue  of  the  writ  of  attach- 
ment, to  deliver  the  same  to  the  trustees,  upon  demand  made  by  them,  and  upon 
their  producing  a  certificate  from  the  prothonotary,  that  they  have  been  duly  qual- 
ified, and  given  security,  if  so  required  by  the  court. 

§  21. — A  majority  of  the  trustees  as  aforesa'd  shall  be  competent  to  exercise  all 
the  flowers  herein  conferred  upon  them,  and  to  perform  all  the  duties  herein  re- 
quired of  them. 

§  22. — It  shall  be  the  duty  of  the  said  trustees,  immediately  after  their  appoint- 
ment, to  give  notice  thereof,  in  one  newspaper,  printed  in  the  county  in  which  the 
attachment  issued,  during  at  least  six  successive  weeks,  together  with  their  names 
and  respective  places  of  residence,  and  in  such  other  newspapers,  or  in  such  other 
manner,  as  the  court,  at  the  time  of  their  appointment  or  afterward,  shall  order 
and  direct;  and  the  said  trustees  shall,  in  such  notice,  require  all  persons  indebted 
to  the  defendant,  or  holding  property  belonging  to  him,  to  pay  and  deliver  all  such 
sums  of  money  and  property  due  and  belonging  to  such  defendant  to  the  said 
trustees,  and  also  desire  all  creditors  of  the  defendant  to  present  their  respective 
accounts  or  demands. 

§  23. — The  trustees  aforesaid  shall  be  deemed  to  be  vested  with  all  the  estate  of 
the  debtor  at  the  time  of  issuing  the  said  attachment,  subject  to  aU  liens  existing 
at  that  time;  and  it  shall  be  their  duty  to  take  into  their  possession  all  the  said  es- 
tate, whether  attached  as  aforesaid  or  afterward  discovered  by  them,  and  all 
books,  vouchers,  and  papers  relating  to  the  same;  and  they  shall  be  capable  of 
suing  for  and  recovering,  in  their  own  names,  all  the  said  estate,  and  all  debts  and 
things  in  action,  due  or  belonging  to  such  debtor  at  the  date  of  the  attachment  or 
at  any  time  thereafter. 

§  '2A..— Provided  (1st),  that  no  purchase  or  assignment  of  the  real  estate  of  such 
debtor,  made  bona  fide,  and  for  a  valuable  consideration,  before  the  attachment 


PENNSYLVANIA.  6(33 

execTitcd  thereon  and  returned  and  entered  upon  tbe  docket  as  aforesaid,  by  or  to 
any  person  liaving  no  notice  or  knowledge  of  such  attachment,  shall  bo  invalidated 
or  impeached  thereby;  and  (2d)  that  no  purchase  or  assignment  of  the  personal 
property  of  such  debtor,  made  bona  fide,  and  for  a  valualiletconsi'leration,  liy  or  to 
any  person  having  no  notice  or  knowledge  of  the  attachment,  shall  be  invalidated 
or  imi>t'aohed  thereby;  and  (3d_)  that  if  any  person  indebted  to  the  defendant  in  the 
attachment,  or  having  possession  of  any  of  his  property,  shall  bona  fide  pay  the 
said  debt,  or  deliver  the  said  ]H-0)ierty  to  the  said  defendant,  without  notice  or 
knowledge  of  the  attachment,  he  shall  not  be  liable  to  pay  or  deliver  the  same  to 
the  trustees;  and  (4th)  that  the  wife  and  family  (if  any)  of  such  debtor  shall  be  en- 
titled to  retain  for  their  o^vn  use  such  articles  as  may  by  law  be  exempted  from 
levy  and  sale  upon  execution. 

§  25. — The  trustees  aforesaid  may  summon  before  them,  and  examine  upon  oath 
or  affirmation,  which  they  are  hereby  authorized  to  administer,  and  by  interroga- 
tories or  other^vise,  all  jiersons  residing  within  the  county,  supposed  to  bs  indebted 
to  the  defendant,  and  such  other  persons,  residing  as  aforesaid,  as  they  shall  think 
fit,  touching  the  real  or  personal  estate  of  the  defendant,  and  such  other  things  as 
may  tend  to  disclose  their  estates,  or  their  secret  grants  or  alienation  of  their 
efifects. 

§  2G. — If  any  person  summoned  to  attend  before  the  trustees  as  aforesaid  shall 
refuse  to  attend,  or  shall  refuse  to  be  sworn  or  affirmed,  or  to  make  answers  to 
such  questions  or  interrogatories  as  shall  be  administered  to  him  by  or  on  behalf  of 
the  said  trustees,  it  shall  be  lawful  for  the  said  trustees  to  commit  such  person  to 
the  jirison  of  the  county,  there  to  be  detained  until  he  shall  submit  to  be  examined 
as  aforesaid. 

§  27. — Provided ,  that  any  person  arrested  or  detained  by  virtue  of  any  such 
warrant  may  be  enlarged  upon  bail  given,  with  contUtion  that  he  shall  appear  at 
the  next  court  of  common  pleas,  to  be  holden  for  such  county,  then  and  there  to 
answer  all  such  interrogatories  as  shall  be  exhibited  to  him,  under  the  direction  of 
such  court,  and  abide  all  orders  which  shall  be  made  by  such  cotu-t  on  behalf  of 
the  said  trustees. 

§  28. — The  like  proceedings  also  may  be  had,  in  case  any  person  having  books, 
papers,  vouchers,  or  effects  belonging  to  the  defendant  in  the  attachment,  and 
discovered  by  the  trustees,  subsequent  to  the  attachment  executed  as  aforesaid, 
shall  refuse  to  deliver  the  same  to  the  said  trustees,  upon  being  legally  required 
thereto. 

§  29. — If  any  garnishee  or  other  person,  having  possession  of  the  effects  of  the 
defendant  in  the  attachment,  or  having  knowledge  of  the  same,  or  being  indebted 
to  the  defendant,  shall  reside  in  another  countv,  it  shall  be  lawful  for  the  trustees 
to  exhibit  interrogatori'^s,  in  writing,  to  such  person,  in  the  manner  authorized  by 
law  in  the  case  c.f  foreign  attachment,  and  thereupon,  the  court  of  common  pleas 
of  the  county  in  which  such  jierson  shall  reside  shall  have  power  to  compel  such 
person  to  answer  thereto,  in  like  manner  as  in  the  case  of  a  foreign  attachment  is- 
sued out  of  such  court. 

§  30. — It  shall  be  lawful  for  the  said  trustees,  by  warrants,  under  their  hands 
and  seals,  to  cause  to  be  broken  open,  in  the  day-time,  houses,  chambers,  shops, 
stores,  or  warehouses  of  the  defendant,  or  any  doora  therein,  and  any  trunks  or 
chests  of  the  defendant,  in  which  his  goods  and  effects,  books  of  account  or  jjapers 
relating  to  his  estate,  shall  be,  or  shall  be  reputed  to  be,  and  to  seize  the  same  for 
the  benefit  of  his  creditors. 

§  31.  — If  the  defendant  in  any  attachment  as  aforesaid  shall,  prior  to  the  issuing 
thereof,  have  conveyed  or  transferred  any  part  of  his  real  or  personal  estate  to  his 
wife  and  children,  or  either  of  them,  or  to  any  person  in  trust  for  them,  or  either 
of  them,  or  shall  have  conveyed  or  transferred  the  same  to  any  other  person, 
with  intent  to  defraud  his  creditors,  the  trustees  aforesaid  shall  have  power  to 
recover  and  dispose  of  the  same,  as  fully  and  effectually  as  if  the  said  defend- 
ant had  been  actually  seized  or  j)ossessed  thereof  at  the  time  of  the  attachment. 

§32. — If  the  defendant  in  the  said  attachment  shall  have  conveyed  or  trans- 
ferred any  of  his  real  or  personal  estate  unto  any  person,  upon  condition  or  power 
of  redemption,  by  i^ajnuent  of  money?or  otherwise,  it  shall  be  lawful  for  the  trus- 
tees to  make  tender  of  money,  or  other  performance,  according  to  the  nature  of 
such  condition,  as  fully  as  the  said  defendant  might  have  done;  and  after  such  per- 
formance or  tender,  the  said  trusteed  shall  have  power  to  sell,  or  otherwise  dispose 
of,  the  said  real  or  personal  estate,  for  the  benefit  of  the  creditors,  in  the  manner 
herein  provided. 


664  PENNSYLVANIA. 

§  33. — It  shall  be  lawful  for  the  said  trustees,  at  any  time  after  the  term  next 
succeedinpr  that  to  which  the  writ  was  returnable,  to  make  public  sale  and  assur- 
ance of  all  the  goods  and  chattels  of  the  defendant,  and  of  his  real  estate,  at  any 
term  after  the  third  term  succeeding  that  to  which  the  original  'WTit  was  retum- 
ablo,  and  to  £rrant  and  assign  or  otherwise  to  order  and  dispose  of,  for  the  benefit 
of  the  creditors,  all  or  anj'of  the  debts  due  or  to  become  due  to  the  defendant;  and 
every  such  sale,  grant,  assurance,  or  other  disposition  shall  be  good  and  va'M  in 
law  against  the  said  defendant  and  his  legal  representatives,  and  shall  vest  all  the 
right,  title,  and  interest  of  the  defendant  in  the  piu-chaser,  grantee,  or  per:5 on  to 
whom  the  same  shall  have  been  disposed  of,  so  that  such  pm-chaser,  gTantee,  or 
other  person  may  sue  for  and  recover  any  such  i^roperty  or  debts,  in  his  own  name, 
and  to  his  own  use;  and  after  such  grant,  assignment,  or  other  disposition  of  such 
debts,  neither  the  said  defendant  nor  any  other  to  whom  such  debts  shall  be  due 
shall  have  power  to  recover,  release,  or  discharge  the  same. 

§  34. — Provided^  that  before  making  sale  of  any  of  the  real  or  personal  estate  of 
the  defendant  as  aforesaid,  it  shall  be  the  duty  of  the  trustees  to  give  at  least  ten 
days'  notice  thereof,  in  the  manner  practiced  in  the  case  of  sales  Ijy  sheriffs,  upon 
execution:  And  provided  also,  that  the  said  trustees  may,  at  any  time  after  their 
appointment,  make  sale  of  any  perishable  goods,  upon  leave  of  the  court,  or  of  a 
judge,  granted  in  the  manner  hereinbefore  provided. 

OF   THE   DISTRIBUTION  AMONG   THE   CREDITORS. 

§  35.  —At  some  time  after  the  expiration  of  six  months  from  the  first  public  no- 
tice given,  as  hereinbefore  provided,  the  trustees,  having  previously  given  public 
notice  of  the  time  and  place  fixed  by  them  for  the  purpose,  shall  proceed  to  receive 
the  proofs  of  the  several  creditors,  and  shall  detennine  upon  the  same,  and  having 
stated  their  accounts,  and  ascertained  the  proportionate  sum  payable  to  each  cred- 
itor, shall  file  their  report  of  the  same,  in  the  office  of  the  prothonotary  of  the  court 
out  of  which  the  attachment  was  issued. 

§  33. — It  shall  be  the  duty  of  such  prothonotary  to  give  public  notice  of  the 
filing  of  such  report,  by  advertisement,  in  the  manner  directed  by  law  in  the  case 
of  the  accounts  of  asngnee3  under  a  voluntary  assignment;  and  at  the  next  stated 
'  term  of  the  court,  after  the  filing  of  the  report,  if  exceptions  shall  not  b?  pre- 
sented at  such  time  as  may  be  du-ected  by  the  rules  of  such  court,  the  report  may 
be  confirmed  by  the-  comts,  and  the  trustees  shall  thereupon  make  <Ustribution  ac- 
cordinglj-. 

§  37.  — If  the  whole  of  the  estate  shall  not  have  been  distributed  upon  such  re- 
port, the  .'■.aid  trustees  shall,  at  the  expiration  of  three  months  after  the  order  of  the 
court  upon  such  report,  proceed  to  make  a  second  dividend  of  all  such  moneys  as 
shall  have  come  into  their  hands  after  the  first  dividend,  and  make  report  in  like 
manner,  and  the  .same  ]:)roceedings  shall  be  had  upon  such  report  as  are  hereinbe- 
fore provided;  and  so,  from  time  to  time,  imtil  a  distribution  shall  have  been  made 
of  all  the  estate  of  such  debtor. 

§  38. — Provided,  that  in  the  distribution  among  the  creditors  of  a  defendant  as 
aforesaid,  no  preference  shall  be  allowed  to  debts  due  on  specialties. 

§  39. — If  any  person  shall  have,  bona  fide,  given  credit  to  such  debtor,  or  taken 
securities  from  him,  payable-at  future  days,  which  shall  not  have  expired  or  fallen 
due  at  the  time  of  the  issuing  of  the  attachment,  such  creditor  shall  lie  admitted 
to  i^rove  his  debt  or  contract,  as  if  it  were  payable  presently,  and  shall  have  a  divi- 
dend, in  i^roportion  to  the  other  creditors,  discounting,  where  no  interest  is  pay- 
able, at  the  rate  of  lawful  interest. 

§  40. — In  all  cases  in  which  mutual  credit  has  been  given  by  such  debtor  and 
any  other  person,  or  mutual  debts  have  existed  between  them,  at  any  time  before 
the  issuing  of  the  attachment,  the  trustees  shall  state  the  account  between  them, 
and  one  debt  may  be«et  off  against  the  other,  and  what  shall  appear  to  be  due  on 
e.ther  side,  on  the  balance  of  such  accoimt,  after  such  set-off,  and  no  more,  shall 
be  claimed  or  jiaid  on  either  side,  as  the  case  may  be. 

§  41. — After  payment  of  all  just  demands  as  aforesaid,  and  of  the  costs  and 
char -es  of  the  attachment  as  aforesaid,  the  overplus,  if  any,  shall  be  returned  to 
the  defendant,  his  executors,  administrators,  or  assigns. 

§  42. — When  the  trustees  shall  have  completed  the  distribution  of  the  debtor's 
estate  among  the  creditors,  as  aforesaid,  they  shall  cause  an  account  of  the  same 
t J  bj  litated,  and  filed  in  the  office  of  the  i^rothonotary  of  the  comt  in  which  the 
appointment  took  place. 


PENNSYLVANIA.  6G5 

FOREIGN  ATTACH^lEKT. 

OF   THE   WRIT   OF   FOREIGN   ATTACHMENT. 

§  1. — The  writ  of  foreign  attachment  shall  be  made  in  the  following  form,  viz. : 

[L.   S.]    county,   ss.     The   commonwealth   of  Pennsylvania:    To  the 

sheriff  of+said  county,  greeting:    We  command  you  that  you  attach ,  late  of 

your  county,  by  all  and  singular  his  goods  and  chattels,  lands  and  tenements,  in 
whose  hands  or  possession  soever  the  same  may  be,  so  that  he  be  and  ajipear  be- 
fore our  court  of  ,  to  be  holden  at ,  in  and  for  the  said  county,  on 

the  day  of  next,  there  to  answer  of  a  plea  [setting  forth 

briefly  the  cause  of  action  or  complaint],  and  have  you  then  and  there  this  writ. 
Witness,  etc.     [Laws  1874,  p.  183.] 

§  2. — A  writ  of  attachment,  in  the  form  aforesaid,  may  be  issued  against  the 
real  or  personal  estate  of  any  person  not  residing  within  this  commonwealth,  and 
not  being  within  the  county  in  which  such  writ  shall  issue,  at  the  time  of  the  issu- 
ing thereof. 

§  3. — A  writ  of  attachment,  in  the  form  aforesaid,  may  be  issued  against  any 
foreign  corporation,  aggregate  or  sole,  and  the  i^roceedings  aforesaid  may  be  had 
thereon,  so  far  as  the  case  will  jjermit. 

§  4. — In  every  writ  of  attachment  as  aforesaid  shall  be  contained  a  clause,  com- 
manding the  ofBcer  to  summon  all  persons  in  whose  hands  or  possession  the  said 
goods  and  chattels,  or  any  of  them,  may  be  attached,  so  that  they  and  every  of 
them  be  and  appear  before  the  said  court,  at  the  day  and  place  mentioned  in  the 
said  writ,  to  answer  what  shall  be  objected  against  them,  and  abide  the  judgment 
of  the  court  therein. 

§  5.  — No  person  or  company  engaged  in  the  business  of  forwarding  or  trans- 
porting goods,  wares,  and  merchandise  shall  be  made  liable  in  any  jn-oceedings  in 
attachment,  as  garnishee  or  otherwise,  when  such  goods,  wares,  or  merchandise  are 
■in  transitu,  and  at  the  time  of  service  of  process,  beyond  the  limits  of  this  com- 
monwealth, without  default,  collusion,  or  fraud  qn  the  part  of  such  person  or 
company. 

ATTACHMENT   OF   INTEREST   IN   DECEDENTS'   ESTATES. 

§  G. — All  legacies  given,  and  lands  devised,  to  any  j^erson  or  jDersons,  bj'  will  or 
testament,  and  any  interest  which  any  person  or  persons  may  have  in  the  real  or 
personal  estate  of  any  decedent,  whether  by  will  or  otherwise,  or  so  much  thereof 
as  may  be  necessary  to  satisfy  the  demand  and  costs  of  claimant,  shall  be  subject 
and  liable  to  be  attached  by  any  creditor  or  creditors  of  such  person  or  persons,  by 
writ  or  writs  of  foreign  attachment,  in  the  hands  or  possession  of  the  executor  or 
administrator,  or  in  whose  hands  or  possession  soever  the  same  .may  be,  as  fully 
and  effectually  as  in  other  cases;  and  the  like  proceedings  shall  be  had  as  are  pre- 
scriljed  in  the  several  acts  of  this  commonwealth,  regulating  the  proceedings  in  ac- 
tions of  foreign  attachment:  Provided,  that  the  provisions  of  this  act  shall  not 
extend  to  legacies  and  distributive  shares  due  married  women. 

§  7. — In  all  cases  where  any  legacy,  devise  of  land,  or  any  interest  which  any 
debtor  may  have  in  the  estate  of  any  decedent,  whether  by  will  or  otherwise,  is  or 
are  attached,  or  may  be  hereafter  attached,  in  the  hands  of  the  executor  or  admin- 
istrator, or  in  whosesoever  hands  or  possession  the  same  may  be,  by  writ  or  writs 
of  foreign  attachment,  it  shall  be  the  duty  of  the  plaintiff  in  such  action,  in  addi- 
tion to  the  recognizance  and  securities  now  required  by  law  to  be  given  in  actions 
of  foreign  attachment,  to  tender  to  the  garnishee  or  garnishees,  if  he  or  they  be 
executors  or  administrators,  before  receiving  the  distributive  share  of  such  debts, 
or  so  much  thereof  as  may  be  necessary  to  satisfy  the  debt  and  interest,  and  costs, 
a  bond,  with  sufficient  security,  to  be  approved  by  the  court,  in  double  the  amount 
to  be  received  from  such  garnishee,  with  like  conditions  as  are  prescribed  in  the 
41st  section  of  the  act,  entitled  "an  act  relating  to  executors  and  administrators," 
passed  the  24th  day  of  February,  A.  D.  1834;  and  the  said  executor,  administrator,, 
or  other  pjerson  in  whose  hands  the  legacy,  devise  of  land,  or  other  interest  due 
such  debtor  may  be  attached,  shall  be  liable  to  the  same  penalties,  and  to  be  pro- 
ceeded against  as  garnishees  in  foreign  attachment  are  now  by  law  subject  to: 
Provided,  however,  that  nothing  in  this  act  shall  be  construed  to  confer  on  the 

Elaintiff  in  such  action  any  greater  rights  or  benefits  than  the  debtor  would  have 
een  entitled  to,  but  the  same  rights  which  the  debtor  has,  and  no  more,  is  [are] 
hereby  conferred  on  the  attaching  creditor. 

OF  THE  SERVICE  OF  THE  ATTACHMENT. 

§  8. — In  the  case  of  personal  property,  the  attachment  shall  be  executed  as  fol- 
lows, to  wit: 


6G6  PENNSYLVANIA. 

The  officer  to  whom  such  ^v^it  shall  be  directed  shall  go  to  the  person  in  whose 
hands  or  possession  the  defendant's  goods  or  effects  are  supposed  to  be,  and  then 
and  there  declare,  in  the  presence  of  one  or  more  credible  persons  of  the  neighbor- 
hood, that  he  attaches  the  said  goods  or  effects. 

§  9. — In  the  case  of  real  estate,  the  attachment  shall  be  executed  as  follows: 

I.  If  the  attachment  be  levied  on  houses,  other  buUdings,  or  lands,  it  shall  be 
the  duty  of  the  sheriff  to  leave  a  copy  of  the  writ  with  the  tenant,  or  other  person 
in  actual  i^ossession,  holding  under  the  defendant  in  the  attachment,  and  to  sum- 
mon him  as  garnishee. 

II.  If  there  be  no  person  in  actual  possession  as  aforesaid,  the  sheriff  shall  pub- 
lish a  copy  of  the  writ,  for  six  weeks,  in  one  newspaper  printed  in  the  county,  if 
there  be  one,  other'wise,  in  one  newspaper  published  nearest  to  the  land  attached; 
and  such  ^^Tit  shall  also  be  published  in  one  or  more  newspapers  in  the  citj'  of  Phil- 
adelphia, or  elsewhere,  as  the  court,  if  in  session,  or  a  judge  thereof,  in  vacation, 
at  the  time  of  issuing  the  same,  having  reference  to  the  supposed  place  of  residence 
of  the  defendant,  shall  direct. 

III.  If  the  attachment  be  levied  on  a  rent-charge,  it  shall  be  the  duty  of  the  sher- 
iff to  leave  a  copy  of  the  wo-it  with  the  owner  of  the  messuage,  lot,  or  land  out  of 
which  such  wi-it  [rent]  shall  issue,  or  upon  which  the  same  shall  be  charged,  or  if 
such  owner  shall  not  reside  ■withia  the  county,  upon  the  tenant  or  other  person  in 
possession  of  such  messuage,  lot,  or  land,  and  in  either  case,  to  summon  such  per- 
son as  garnishee. 

IV.  In  all  other  cases  of  incorporeal  hereditaments,  the  attachment  shall  be  exe- 
cuted by  lea^-ing  a  copy  of  the  writ  with  the  person  or  persons  who  may  be  liable 
to  the  payment  of  money  to  the  defendant,  or  who  may  be  charged  with,  or  other- 
wise liable  to  the  defendant  in  respect  of  such  hereditaments,  and  if  there  be  no 
such  person,  by  publication,  as  directed  in  the  case  of  houses  or  lands  of  which 
there  shall  be  no  person  in  possession,  as  aforesaid. 

§  10. — All  writs  of  foreign  attachment  against  defendants  who  are  mortgagees 
and  judgment  creditors,  whose  debtors  by  judgment  or  mortgage  are  non-residents, 
and  cannot  lie  personally  served  with  notice  or  process  as  garnishees,  shall  and  may 
be  executed  by  attaching  or  leyjang  the  same  on  the  lands,  tenements,  and  hered- 
itaments upon  which  the  said  judgments  or  mortgages  are  liens  or  incmnbrances, 
in  the  same  manner  as  such  writs  may  now  by  law  be  executed  upon  the  lands  and 
tenements  of  the  defendants  therein;  and  such  writs,  after  such  execution,  shall 
bind  the  rights  and  interests  of  such  mortgagees  or  judgment  creditors,  and  shall 
operate  as  a  stay  of  proceedings  upon  said  judgments  and  mortgages,  imtil  said  at- 
tachments are  dissolved  or  otherwise  legally  disposed  of.  And  upon  a  final  recovery 
by  the  plaintiff  in  such  attachment,  it  shall  be  lawful  for  the  courts  ha\'ing  jtiris- 
diction  to  subrogate  tbe  plaintiffs  in  said  attachments  to  the  rights  of  the  said 
mortgagees  or  judgment  creditors,  until  they  shall  have  received  satisfaction  of 
their  respective  debts:  Provided,  that  before  such  subrogation  shall  be  made,  the 
plaintiff  in  such  attachment  shall  be  required  to  give  the  same  security  that  is  now 
by  law  required  to  be  given  before  execution  is  issued  upon  judgments  in  foreign 
attachments. 

EFFECT   OF   THE   ATTACHMENT-. 

§  11. — The  goods  and  effects  of  the  defendant  in  the  attachment,  in  the  hands 
of  the  garnishee,  shall,  after  such  service,  be  bound  by  such  ^\Tit,  and  be  in  the 
officer's  power;  and  if  susceptible  of  seizure  or  manual  occupation,  the  officer 
shall  proceed  to  secure  the  same,  to  answer  and  abide  the  judgment  of  the  com-t 
in  that  case,  imless  the  person  having  the  possession  thereof  will  give  security 
therefor. 

§  12. — Every  writ  of  attachment  executed  upon  real  estate  shall  bind  the  same, 
as  against  purchasers  and  mortgagees,  from  the  time  of  the  execution  thereof;  and 
it  shall  lie  the  duty  of  the  sheriff  to  file  in  the  office  of  the  prothonotary  of  the 
court  a  description  of  the  x^roperty  attached,  within  five  days  after  he  shaU  have 
made  the  attachment,  which  description  shall  be  entered  by  the  prothonotary  upon 
his  docket,  and  the  names  of  the  parties,  with  the  date  of  the  execution  of  the 
writ,  and  the  amount  of  bail  required,  shall  also  be  entered  by  him  upon  his  judg- 
ment docket. 

OF   THE  JUDGMENT,    AND   PROCESS   AGAINST  THE  GAENISHEE. 

§  13. — It  shall  be  lawful  for  the  plaintiff,  at  the  third  term  of  the  court  after 
the  execution  of  the  vrrit  aforesaid,  if  he  shall  have  filed  his  declaration,  to  take 
judgment  thereon  against  the  defendant,  for  default  of  appearance,  unless  the  at- 
tachment before  that  time  be  dissolved. 


PENNSTLTANIA.  667 

§14. — In  any  action  of  foreign  attachment  -wherein  the  plaintiff  has  or  shall 
hereafter  Lave  entered  judgment  by  default,  it  shall  be  lawful  for  the  plaintiff  to 
enter  a  rule  for  the  prothonotary  to  assess  the  damages,  which  the  prothonotary 
may  do,  upon  evidence  produced  to  him,  or  upon  the  affidavit  of  the  plaintiff,  or 
some  other  person  cognizant  of  the  transaction. 

§  15. — After  judgment  against  the  defendant  in  manner  aforesaid,  the  plaintiff 
may  have  a  writ  of  scire  facias  against  the  garnishee,  commanding  him  to  appear 
before  the  said  court  at  the  next  term,  and  show  cause,  if  any  he  have,  why  the 
plaintiff  should  iicjt  have  execution  of  his  said  judgment,  of  the  estate  and  effects 
of  the  said  defendant,  attached  as  aforesaid,  in  his  hands  or  possession. 

§16. — After  judgment  as  aforesaid,  it  shall  also  be  lawful  for  plaintiff  to  ex- 
hibit in  writing,  to  every  garnishee  as  aforesaid,  all  such  interrogatories  as  he  may 
deem  necessary,  touching  the  estate  and  effects  of  the  defendant  in  his  possession 
or  charge,  or  due  and  o^ving  from  him,  as  the  case  may  be,  to  the  defendant,  at  the 
time  of  the  service  of  such  writ,  or  at  any  other  time,  and  cause  the  same  to  be 
filed  of  record  in  the  cause. 

§  17- — Whenever  interrogatories  shall  be  filed  as  aforesaid,  it  shall  be  the  duty 
of  the  court,  upon  the  motion  of  the  plaintiff,  to  grant  a  rule  upon  the  garnishee, 
to  appear  before  the  said  court,  at  the  time  and  place  in  such  ride  to  be  named, 
and  then  and  there  to  exhibit  ixi  wi-iting,  under  his  oath  or  affirmation,  full, 
direct  and  true  answers  to  all  and  singular  the  interrogatories  of  the  plaintiff, 
exhibited  and  filed  as  aforesaid,  or  such  of  them  as  the  coxui;  shall  deem  pertinent 
and  proper. 

§  18. — If  the  garnishee  shall,  after  due  service  of  rule  as  aforesaid,  neglect  or 
refuse  to  comply  therewith,  he  shall  be  adjudged  to  have  in  his  possession  goods 
and  effects  of  the  defendant,  liable  to  such  writ  of  attachment,  to  an  amount  or 
value  sufficient  to  satisfy  the  demand  of  the  plaintiff,  together  with  all  legal  costs 
of  suit  and  charges,  and  thereupon  execution  may  issue  against  him,  in  like  man- 
ner as  in  the  case  of  a  judgment  rendered  against  such  garnishee  for  his  own  proper 
debt. 

§  19. — If  issue  be  taken,  and  a  trial  be  had  upon  any  scire  facias  as  aforesaid, 
the  jiury  shall  find  what  goods  or  effects,  if  any,  were  in  the  hands  of  the  garnishee 
at  the  time  the  attachment  was  executed  as  aforesaid,  or  afterward,  and  also  the 
value  thereof. 

§  20. — Where,  in  any  attachment  execution,  or  scire  facias  on  foreign  attach- 
ment, issued  out  of  any  court  of  record  in  this  state,  the  garnishee,  after  issue 
joined  therein,  shall  be  found  to  have  in  his  possession  or  control  no  real  or  per- 
sonal property  of  the  defendant,  nor  to  owe  him  anj'  debt,  other  than  such  jiroperty 
or  debts  as  shall  have  been  already  admitted  by  the  plea  or  answers  of  the  gar- 
nishee, or  in  case,  without  going  to  trial,  the  plaintiff  shall  take  judgment  against 
the  garnishee  for  what  shall  be  so  admitted  in  his  plea  or  answer,  then,  and  in 
either  such  case,  the  garnishee  shall  be  entitled,  in  addition  to  the  costs  already  al- 
lowed by  law,  to  a  reasonable  counsel  fee  out  of  the  jDrofJerty  in  his  or  their  hands, 
to  be  determined  and  taxed,  in  case  of  dispute,  by  the  court,  or  by  some  person 
appointed  for  that  i^urpose. 

OF   THE   EXECUTIOIf. 

§  21. — After  a  verdict  for  the  p^laintiff  on  any  scire  facias  as  aforesaid,  it  shall 
be  lawful  for  him  to  have  execution  of  his  judgment  in  the  attachment,  to  be  levied 
of  the  goods  or  effects  so  found  in  the  hands  or  possession  of  the  garnishee,  or  of  so 
much  of  them  as  shall  be  sufficient  to  satisfy  his  demand,  together  with  legal  costs 
of  suit  and  charges,  as  aforesaid. 

§  22. — The  plaintiff  may  also,  at  the  same  time,  have  execution  against  the  gar- 
nishee upon  the  judgment  obtained  against  him  on  the  scire  facias,  as  in  the  case 
of  a  judgment  against  him  for  his  proper  debt,  to  be  executed,  if  the  garnishee 
shall  neglect  or  refuse,  upon  the  lawful  demand  of  the  ptroper  officers,  to  produce 
and  deliver  the  goods  and  effects  of  the  defendant,  as  aforesaid,  or  to  pay  the  debt 
or  duty  attached  if  the  same  shall  be  due  and  payable. 

§  23. — But  after  judgment,  before  any  execution  shall  be  executed,  the  plaintiff 
shall  give  security,  by  recognizance  and  sufiicient  sureties,  to  be  approved  of  by 
the  court,  or  by  one  of  the  judges  thereof,  in  vacation,  with  condition,  that  if  the 
defendant  in  the  attachment  shall,  within  a  year  and  a  day  next  ensuing  the  date 
of  such  recognizance,  by  himself  or  attorney,  come  into  court  and  disprove  or  avoid 
the  debt  recovered  against  him,  or  shall  discharge  the  same,  with  costs,  in  such 
case  the  plaintiff  shall  restore  to  the  defendant  the  goods  or  effects,  or  the  value 


668  PENXSTLYANIA. 

thereof,  attached  and  condemned  as  aforesaid,  or  so  much  thereof  as  shall  be  dis- 
proved or  discharged,  or  else  that  they  will  do  it  for  him. 

§  24. — In  any  siich  case  of  foreign  attachment  and  final  judgment  entered,  it  shall 
be  lawful  for  the  i^laintiff ,  at  his  oiJtion,  instead  of  entering  the  secmity  as  required 
by  the  sixtj'-tirst  section  of  the  said  act,  to  leave  the  property  attached  remain 
unsold  for  a  year  and  day  after  such  judj;ment,  and  thereafter  to  proceed  to  make 
sale  by  execution,  with  the  like  effect  as  if  such  security  had  been  entered. 

OF   DISSOLVING  THE   ATTACEireNT. 

§  25. — Provided  alvjays,  that  if  the  defendant  or  defendants  in  the  attachment, 
and  every  of  them,  shall,  at  any  time  before  the  money  paid,  put  in  and  perfect 
bail  to  the  plaintiff's  action,  in  the  sum  demanded,  or  in  such  sum  as  the  court, 
njjon  the  cause  of  action  shown,  shall  order,  or  if  they  shall  make  deposit,  in  the 
manner  provided  in  the  case  of  an  arrest  upon  a  capias  udrcspondtnditm,  theattach- 
ment,  and  all  i^roceedings  had  thereon  as  aforesaid,  shall  be  dissolved,  and  the  ac- 
tion .shall  proceed  in  due  course,  in  like  manner  as  if  the  same  had  been  commenced 
by  a  writ  of  capias  ad  rcspondtiiduni. 

§  26. — In  all  cases  of  dissolving  foreign  attachments,  the  bail  shall  be  bail  abso- 
lute, in  a  recognizance  of  double  the  amount  in  controversy,  as  nearly  as  may  be 
ascertained,  with  one  or  more  sufficient  sureties,  conditioned  for  the  payment  of 
the  debt  or  damages,  interest  and  cost  that  may  be  recovered. 

§  27. — If  an  attachment  shall  be  dissolved  as  aforesaid,  after  any  sale  of  real  or 
personal  property  attached,  such  dissolution  shall  not  bave  the  effect  of  divesting 
any  estate  or  interest  acquired  by  vh-tue  of  such  sale,  by  any  person  not  party  to 
such  attachment,  but  in  such  case,  the  proceeds  of  any  such  sale  shall  be  paid  or 
restored  to  the  defendant  in  the  attachment. 

§  28. — It  shall  be  lawful  for  any  defendant  in  an  attachment,  instead  of  giving 
bail  or  security,  at  his  election,  at  any  time  before  judgment  obtained  in  the  at- 
tachment, to  cause  an  appearance  to  be  entered  for  him,  and  to  take  defense  to 
the  action,  in  which  case  the  action  shall  proceed  as  if  commenced  by  a  summons; 
but  the  attachment  shall,  nevertheless,  continue  to  bind  the  estate  or  effects  at- 
tached, as  in  other  cases,  unless  judgment  be  rendered  for  the  defendant  in  such 
attachment;  a^nd  if  judgment  be  rendered  for  the  plaintiff,  such  judgment  shall 
Lave  the  like  force  and  eft'ect  as  in  case  of  an  action  commenced  by  a  .summons: 
Provided,  that  the  plaintiff  may  i>roceed  by  scire  facias  against  the  garnishee, 
and  execution  against  the  estate  and  effects  attached,  as  in  other  cases  of  attach- 
ment, except  that  a  recognizance  to  restore  as  aforesaid  shall  not  be  necessary. 

PROCEEDINGS  ON  ATTACHMENT  OF   REAL  ESTATE. 

§  29. — In  every  case  of  a  writ  of  attachment  executed  upon  land,  which  shall 
have  been  demised  for  years  or  otherwise,  with  a  reservation  of  rent,  the  delivery 
of  a  copy  of  the  writ  of  attachment  to  the  tenant,  as  hereinbefore  proviiled,  shall 
have  the  effect  of  seciuestering,  in  the  hands  of  the  tenant,  all  such  sums  or  amoimt 
of  rent  as  shall  be  due  at  the  time  of  the  execution  of  the  writ,  or  that  shall  ac- 
crue until  the  execution  against  the  garnishee,  unless  the  attachment  be  sooner 
dissolved. 

§  30. — It  shall  be  lawful  for  the  court,  at  any  time  after  the  return  of  the  at- 
tachment, on  application  by  the  plaintiff  and  affidavit  of  a  just  cause  of  action,  to 
issue  a  wi-it  to  the  sheriff,  reqioiring  him  to  collect  and  recover  from  the  tenant  <-f 
the  premises  all  such  rent  as  4hall  have  accrued  at  the  time  of  the  execution  of 
the  writ  of  attachment,  or  as  may  accrue  thereafter,  until  the  further  order  of  the 
court. 

§  31.  — The  sheriff  or  other  officer  shall,  by  virtue  of  such  writ,  proceed,  from 
time  to  time,  to  recover  such  rents,  in  like  manner  and  with  the  like  powers  as  are 
or  shall  be  possessed  by  a  landlord  under  the  laws  of  this  commonwealth,  and  it 
shall  be  his  duty,  forthwith,  on  the  receipt  of  any  moneys  arising  from  the  recovery 
of  such  rents,  to  bring  the  same  into  court. 

§32. — After  judgment  obtained  on  a  scire  facias  sugainst  such  tenant  as  gar- 
nishee, it  shall  be  lawfid  for  the  plaintiff  to  have  execution,  as  hereinbeiv^re  pro- 
vided, if  the  rents  of  the  premises,  or  any  part  thereof,  shall  have  remained  in  the 
hands  of  such  tenant;  or  if  such  rents  or  any  part  thereof  shall  have  been  paid 
into  court  as  aforesaid,  then,  upon  award  of  execution  as  aforesaid,  the  plaintiff 
may  have  such  money  paid  into  his  hands,  on  his  giving  security  as  herein 
provided. 


PENNSYLVANIA.  669 

§  33. — If  tLe  rents  and  profits  of  the  real  estate  as  aforesaid  shall  not  be  suffi- 
cient to  satisfy  the  umount  of  the  judgment,  witli  the  interest,  coh'ts,  and  charyes 
as  aforesaid,  the  plaintiff,  on  giving  security  to  restore  as  aforesaid,  niaj^  have  a 
writ  oijicri  fuciaa,  upon  which  tlie  like  proceedings  may  be  had  for  the  condemna- 
tion and  sale  of  real  estate  as  in  other  cases. 

§  34. — After  the  execution  of  any  writ  of  foreign  attachment  upon  the  lands  and 
tenements  of  the  defendant,  or  upon  lands  held  by  the  lien  of  any  judgment  or 
mortgage  owned  by  the  defendant,  as  provided  in  the  third  section  of  this  act,  it 
shaJl  be  lawful  for  any  court,  if  in  session,  or  any  judge  in  vacation,  upon  petition 
and  afiidavit,  in  the  usual  form,  of  the  plaintiff,  or  some  one  in  his  behalf,  to  award 
and  allow  a  writ  of  cstrcpcmcnt  to  stay  waste  upon  all  such  lands  and  tenements,  as 
in  other  cases. 

PROCEEDINGS  WHERE  ONE  OF   SEVERAL   DEFENDANTS  IS  LIABLE  TO  AN  ATTACHMENT. 

§35.— In  all  cases  where  two  or  more  persons  irhall  be  jointly,  but  not  sev- 
erally, liable  to  the  suit  of  another,  if  one  or  more  of  such  persons  shall  be  liable  to 
process  of  attachment  as  aforesaid,  and  another  or  others  of  them  sliall  not  bo  lia- 
ble to  such  process,  it  shall  be  lawful  for  the  person  to  whom  such  liability  is  due 
to  sue  out  and  prosecute  thereon  a  WTit  of  attachment  and  summons,  in  the  fol- 
lowing form,  to  wit: 

[L.    S.]    ■ county,   ss.     The  commonwealth   of    Pennsylvania:    To  the 

sheriff  of  said  county,  greeting:     We  command  you,  that  you  summon ,  so 

that  they  and  every  of  tliem  be  and  appear  before  our  court  of ,  to  be  holden 

at ,  in  and  for  the  said  county,  on  the day  of  next,  there  to 

answer of  a [setting  forth  briefly  the  cause  of  action  or  complaint  as 

in  the  prwcipc],  and  that  you  attach ,  late  of  your  county,  by  all  and  singu- 
lar his  goods  anil  chattels,  in  whose  hands  or  possession  soever  the  same  may  be 
found;  and  also  that  you  summon  the  person  and  persons,  and  every  of  them,  in 

whose  hands  the  goods  or  effects,  or  any  of  them,  of  the  said may  lie  found, 

so  that  they  be  and  appear  before  the  said  court,  at  the  day  and  x)lace  aforesaid, 
to  answer  what  shall  be  objected  to  them,  and  abide  the  judgment  of  the  court  in 
the  premises,  and  have  you  then  there  this  writ.     Witness,  etc. 

§  3G. — The  plaintiff  in  such  writ  shall  be  entitled  to  proceed  thereon  against  the 
defendants  named  in  tlio  clause  of  summons  [or  c','_pi«.s-J,  in  like  manner,  and  with 
lUve  effect,  as  if  one  writ  of  summons  [or  cipias]  had  been  issued  against  all  the 
defendants,  insteatl  of  a  writ  in  the  form  aforesaid;  and  he  shall  also  be  entitled  to 
proceed  against  the  defendants  named  in  the  clause  of  attachment,  and  their  estate 
or  effects,  seized  or  bound  thereby,  in  the  manner  hereinbefore  provided  where  all 
the  defendants  in  such  writ  are  attached. 

§  37. — If  a  judgment  be  rendered  against  the  defendants  who  shall  have  ap- 
peared as  aforesaid,  execution  thereof  may  Ite  had,  in  like  manner  as  in  the  case  of 
a  judgment  rendered  upon  the  confession  of  the  defendant;  and  if  such  defendants 
have  nothing,  or  not  sufficient  whereof  to  levy  such  judgment,  it  shall  be  lawful 
for  the  i^laintiff  to  levy  his  judgment,  or  the  residue  thereof,  of  the  goods  and  ef- 
fects which  may  remain,  subject  to  the  attachment,  jDrocceding  therein  in  all  re- 
spects in  the  manner  hereinbefore  provided,  where  none  of  the  defendants  enter 
bail  as  aforesaid. 

§  38. — Provided,  nevertheless,  that  the  court  may,  if  they  see  cause,  award  exe- 
cution of  the  whole  or  any  part  of  such  judgment  against  the  goods  or  effects  of 
the  defendants  attached,  in  the  first  instance,  saving,  nevertheless,  to  all  the  de- 
fendants, their  respective  rights  and  claims  against  each  other  in  that  behalf. 

§  39.— If  any  of  such  defendants  against  whom  a  summons  [or  capias]  shall  is- 
sue as  aforesaid  shall  jjlead  any  plea  in  bar  of  the  whole  action,  in  the  manner  and 
form  in  which  it  is  brought,  and  a  verdict  and  judgment  absolute  thereon  be  ren- 
dered for  such  defendant,  the  attachment  against  the  other  defendant  shall,  upon 
the  motion  of  any  p)erson  interested,  be  dissolved,  and  the  goods  and  effects  thereby 
bound  shall  be  discharged,  unless  the  i^laintiff  shall,  within  a  year  and  a  day  there- 
after, sue  out  and  prosecute  a  writ  of  error  to  reverse  such  judgment;  and  in  the 
meantime,  and  until  such  judgment  be  reversed,  no  further  proceediuga  '..  :.ll  l^e 
had  upon  any  judgment  which  may  have  been  rendered  against  any  defendant 
attached. 


Attachment  against  vessels — Page  95,  sees.  11-25. 
Estate  of  convicts — Page  278,  sees.  1,  2. 

Exemptions— Page  030,  sec.  20;  p.  C38,  sees.  27,  28;  p.  521,  sec.  24;  Stats.  1876, 
p.  171;  btats.  1883,  p.  34, 


670 


RHODE    ISLAND. 


Execution  attachment— Page  639,  sees.  29-43. 

Justices  of  the  peace— Page  8GG,  sees.  114-118,  and  Stats.  1874,  p.  123. 

Foreign  attachment,  justices  of  the  peace — Page  857,   sees.  76-84;  Stats. 

123,  sees.  1-4. 

In  orphans'  court— Page  1106,  sees.  29-39;  Stats.  1873,  p.  49. 

Executors — Stats.  1873,  p.  37. 

Attachment  of  goods  in  hands  of  bailees — Stats.  1874,  p.  285. 

Sheriiis  to  have  interpleader  in  foreign  attachment — Stats.  188],  p.  106. 


1874, 


RHODE  ISLAND, 

[Public  Statutes,  1882.] 


CHAPTER  206. 

WRITS   OF   ATTACHMEXT. 

§  12. — An  original  writ  commanding  the  attachment  of  the  real  or  personal 
estate  of  the  defendant,  including  his  personal  estate  in  the  hands  or  possession  of 
another  person  as  trustee  of  the  defendant,  and  his  stock  or  shares  in  any  banking 
association  or  other  incorporated  company,  may  be  issued  from  the  supreme  com^, 
cornet  of  common  pleas,  or  any  justice  comrt,  whenever  the  plaintiff  in  the  action  to 
be  commenced  by  such  writ,  his  agent  or  attorney,  shall  make  affida\dt  to  be  in- 
dorsed thereon  or  annexed  thereto,  that  the  plaintiff  has  a  just  claim  against  the 
defendant  that  is  due,  upon  which  the  plaintiff  expects  to  recover  in  such  action  a 
sum  sufficient  to  give  jurisdiction  to  the  court  to  which  such  writ  is  returnable,  and 
also,  either  that  the  defendant  is  an  incorporated  company  estabhshed  out  of  the 
state,  or  that  he  resides  out  of  the  state,  or  that  he  has  left  the  state,  and  is  not 
expected  by  the  affiant  to  return  within  the  same  in  season  to  be  served  with 
process  returnable  to  the  next  term  of  such  court,  or  that  the  defendant  or  some 
one  of  the  defendants  has  committed  fraud  in  contracting  the  debt  upon  which  the 
action  was  founded,  or  in  the  concealment  of  his  property  or  in  the  disposition 
thereof,  or  that  since  the  contracting  of  such  debt  the  defendant  has  been  the  owner 
of  property  or  in  the  receipt  of  an  income  which  he  has  refused  or  neglected  to 
apply  towards  the  payment  thereof,  though  requested  by  the  plaintiff  so  to  do. 

§  13. — An  original  writ  of  attachment,  issued  from  the  supreme  court  or  court 
of  common  pleas,  shall  be  substantially  in  the  following  form: 
The  State  of  Rhode  Island  and  Providence  Plantations. 

[seal.]     sc.     To  the  sheriffs  of  our  several  counties  or  to  their  deputies,  greet- 
ing: We  command  you  to  attach  the  goods  and  chattels  and  real  estate  of of 

,  and  them  in  safe  custody  keep,  and  also  to  attach  the  personal  estate  of  the 

eaid ,  in  the  hands  or  possession  of of ,  as  trustee  of  the  said , 

and  also  to  attach  his  stock  or  shares  in  any  banking  association  or  incorporated  com- 
pany to  the  value  of dollars,  and  to  summon  the  said to  answer  the  com- 
plaint of at  the  next court to  be  holden  at ,  within  and 

for  the  said  county  of  ,  on  the Monday  of  next  ensuing  the 

date  hereof,  in  an  action  of  ,  as  by  declaration  to  be  filed  in  court  will  be 

fully  set  forth;  to  the  damage  of  the  plaintiff dollars.     Hereof  fail  not,  and 

make  true  return  of  this  wi-it  Avith  your  doings  thereon. 

Witness,  Hon. ,  chief  justice  of  oior  supreme  court,  at ,  this 

day  of ,  in  the  year  of . ,  Clerk. 

§  14. — An  original  writ  of  attachment,  issued  from  a  justice's  court,  shall  be 
substantially  in  the  following  form: 
The  State  of  PJiodc  Island  and  Providence  Plantations. 

[seal.]    sc.     To  the  sheriff  of  the  county  of ,  his  deputies,  or  to  either  of 

the  town  sergeants  or  constables  in  the  county  of  ,  greeting:    We  command 

you  to  attach  the  goods  and  chattels  of of and  them  in  safe  custody 

keep,  and  also  to  attach  his  personal  estate  in  the  hands  or  possession  of of 

• ,  as  the  trustee  of  the  said ;  and  also  to  attach  his  stock  or  shares  ja 


RHODE    ISLAND.  671 

any  banking  association  or  incorporated  company  to  the  value  of  dollars, 

and  to  summon  the  said to  answer.  [The  remainder  as  in  a  writ  of  sum- 
mons.] 

WKITS   OF  MESNE  PROCESS. 

§  1.5. — Whenever  an  action  has  been  commenced  by  an  original  writ  of  sum- 
mons, the  plaintiff  therein  may,  at  any  time  before  final  judgment  in  such  action, 
sue  out  of  the  court  to  which  such  original  writ  was  returnable  a  vait  of  mesne 
process  commanding  the  arrest  of  the  defendant,  or  a  writ  of  mesne  process  com- 
manding the  attachment  of  his  goods  and  chattels  and  real  estate,  and  of  his  stock 
or  shares  in  any  banking  association  or  other  incorporated  company,  and  of  his 
personal  estate  in  the  hands  or  possession  of  any  person,  copartnership,  or  corpora- 
tion, as  the  trustee  of  the  defendant,  upon  such  plaintiff,  his  agent  or  attorney, 
making  an  affidavit  to  be  indorsed  on  or  annexed  to  such  writ  setting  forth  facts 
which  would  have  authorized  such  arrest  or  attachment  upon  the  original  writ  in 
such  action  had  such  affidavit  then  been  made.  Such  writ  of  mesne  process  shall 
conform  as  nearly  as  may  be  to  an  original  writ  commanding  an  arrest  or  attach- 
ment, and  shall  be  made  returnable  forthwith. 

§  IG. — Whenever  a  writ  of  attachment  can  be  issued  by  any  court,  it  may  com- 
mand the  attachment  of  the  goods  and  chattels  of  the  defendant  and  his  real  estate 
and  his  personal  estate  in  the  hands  of  another  person  as  his  trustee,  and  his  stock 
or  shares  in  any  banking  association  or  incorporated  company,  and  may  be  varied 
so  as  to  command  the  attachment  of  one  or  more  of  such  classes  of  property  of  the 
defendant. 

§  17. — Writs  of  replevin  and  scire  facias  shall  be  substantially  in  the  following 
form: 

WRIT   OF   REPLEVIN. 

The  State  of  Rhode  Island  and  Providence  Plantations. 

[sE.VL.]  sc.  To  the  sheriffs  of  our  several  counties  and  to  their  deputies, 
greeting:  We  command  you,  that  you  replevy,  if  to  be  found  within  your  pre- 
cinct, the  goods  and  chattels  following,  viz. :  [here  enumerate  and  particularly  de- 
scribe them]:  belonging  to of  ,  now  taken  [detained  or  attached,  as 

the  case  may  be]  by of ,  at ,  in  the  county  of ,  and  them 

deliver  unto  the  said ,  provided  the  same  are  not  taken,  attached,  or  de- 
tained upon  original  writ,  mesne  i^rocess,  warrant  of  distress,  or  upon  e.xecution  as 
the  property  of  the  said ,  and  summon  the  said ,  that  he  appear  be- 
fore oiu" court next  to  be  holden  at ,  within  and  for  the  county 

of .  on  the Monday  of ,  to  answer  unto  the  said in  a  plea 

of  replevin;  that  the  said ,  on  the day  of  ,  at  said ,  un- 
lawfully, and  without  justifiable  cause,  took  the  goods  and  chattels  of  the  said 
as  aforesaid,  and  them  unlawfully  detained  unto  this  day  [or  unlawfully  de- 
tained the  goods  and  chattels  aforesaid,  as  the  case  may  be],  to  the  damage  of  the 

said ,  as  he  says, dollars.     Hereof  fail  not,  and  make  true  return  of 

this  writ  with  your  doings  thereon,  together  with  the  bond  you  shaU  take  of  the 
plaintiff. 

Witness,  Hon. ,  chief  justice  of  our  supreme  com-t,  at ,  this 

day  of ,  in  the  year .  ,  Clerk. 

WRIT   OF  SCIRE  FACIAS. 

The  State  of  Rhode  Island  and  Providence  Plantations. 

[SE.VL.]     sc.      To  the   sheriffs  of   oiu*  several   counties  and  to  their  deputies, 

greeting:      Whereas, of  ,  by  the  consideration  of  the  court, 

holden  at  ,  in  said  county,  on  the  day  of  ,  recovered 

judgment  against  ■ of ,  for  the  smn  of dollars  and cents, 

and  costs  taxed  at ,  as  appears  of  record,  and  execution  thereof  remains  to 

be  clone: 

We  command  you,  theretore,  to  summon  the  said to  appear  before  the 

court ,  to  be  holden  at ,  in  said  county  of ,  on  the • 

day  of  ,  to  show  cause,  if  any  he  has,  why  the  said should  not  have 

execution  against for  the  sums  aforesaid.     Hereof  fail  not,  and  make  true 

return  of  this  writ  with  your  doings  thereon. 

Witness,  Hon. ,  chief  justice  of  ovu"  supreme  court,  at ,  this 

day  of  •,  in  the  year .  ,  Clerk. 

§  18. — The  form  of  a  writ  of  scire  facias  may  be  varied  from  the  above  to  adapt 
it  to  service  by  arrest  or  attachment. 

§  19.  — Whenever  an  original  writ  shall  issue  against  more  than  one  defendant, 
the  forms  hereinbefore  given  may  be  altered  so  as  to  combine  the  \\Tit  of  arrest. 


G72 


RHODE     ISLAND. 


the  writ  of  summons  and  the  ■writ  of  attachment,  in  order  that  the  same  may  be 
served  on  one  or  more  of  the  defendants  by  one  form  of  service  and  on  the  other  or 
others  bj^  another  form  of  service. 

§  22. — Real  estate  shall  not  be  attached  upon  an  original  writ  or  writ  of  mesne 
process  issued  by  a  justice  court. 

§  29.  — Every  person  who  shall  willfully  swear  falsely  to  any  statement  in  an 
afi&davit  made  by  him,  by  means  of  which  affidavit  a  writ  of  arrest  or  attachment 
shall  have  issued  and  which  shall  have  been  served  by  arrest  or  attachment,  shall 
be  deemed  guilty  of  perjury. 


CHAPTER  207. 


SERVICE  OP  WRITS   OF  ATTACHMENT. 

§  12. — The  officer  commanded  by  any  original  writ  or  writ  of  mesne  process  to 
attach  real  estate  or  the  right,  title  and  interest  of  any  defendant  therein,  shall  at- 
tach the  same  by  leaving  an  attested  copy  of  such  writ,  with  a  copy  of  his  doings 
thereon,  with  the  town  clerk  of  the  to'wni  in  which  such  real  estate  shall  be  situ- 
ated, unless  such  real  estate  shall  be  situated  in  the  city  of  Providence,  in  which 
case  he  shall  leave  such  copy  with  the  recorder  of  deeds  of  said  city,  and  the  said 
recorder  of  deeds  shall  note  upon  such  copy  the  time,  as  neai'  as  may  be,  when  the 
same  was  left  with  him,  and  shall  also  enter  in  a  book,  to  be  kept  by  him  for  that 
pinrpose,  the  names  of  the  i^arties  in  such  writ,  the  amount  of  the  damages  claimed, 
the  time  when  such  copy  was  left  with  him,  and  the  court  and  term  to  which  such 
writ  is  returnable,  and  shall  be  entitled  to  demand  and  receive  from  such  officer  a 
fee  of  twentj'-five  cents  in  each  case;  and  such  officer  shall  in  all  cases  also  leave  an 
attested  copy  of  such  writ,  with  a  general  reference  thereon  to  the  real  estate  at- 
tached therein',  together  with  a  statement  of  the  date  and  time  of  day  of  such 
attachment,  vrith  the  defendant  personally  or  with  some  person  at  his  last  and 
usual  place  of  abode,  if  any  he  have,  within  the  precinct  of  the  officer,  or  if  he 
have  none,  then  such  officer  shall  send  such  copy  by  mail  to  such  defendant,  if  his 
address  be  known  to  or  can  be  ascertained  by  such  officer,  and  shall  also  in  the 
last-named  event  leave  a  like  copy  with  the  person,  if  any,  in  possession  of  such 
real  estate. 

§  13. — Whenever  an  original  writ  or  writ  of  mesne  process  shall  command  the 
officer  to  whom  the  same  is  directed  to  attach  the  goods  and  chattels  of  a  defend- 
ant, such  officer  shall  attach  the  same  to  the  value  commanded  in  the  writ,  if  so 
much  can  be  found  by  him,  and  may  attach  any  less  value,  if  the  plaintiff  or  his 
attornej^  shall  give  order  therefor  on  such  ^vrit. 

§  14. — The  officer  making  such  attachment  shall  serve  the  defendant,  as  soon  as 
may  be,  with  an  attested  copy  of  such  wi-it,  having  indorsed  thereon  a  general  ref- 
erence to  the  class  or  kind  of  good.?  and  chattels  so  attached,  together  \vith  a  state- 
ment of  the  place  in  which  they  were  found,  and  of  the  date  and  time  of  day  of 
such  attachment,  by  delivering  such  copj''  to  the  defendant,  if  he  can  be  found  by 
such  officer  within  his  precinct,  or  by  leaving  the  same  with  some  person  at  the 
last  and  usual  place  of  abode  of  the  defendant;  or  if  he  have  none  within  the  pre- 
cinct of  such  officer,  by  sending  such  copy  by  mail  to  such  defendant,  if  his  ad- 
dress be  kno^vn  or  can  be  ascertained  by  such  officer,  and  in  the  last-named  event 
by  leaving  such  copy  ^vith  some  i^erson,  if  any  there  be,  in  laossession  of  such  goods 
and  chattels  at  the  time  of  their  attachment. 

§  15. — Such  officer  shall  keep  the  goods  and  chattels  so  attached  in  his  custody, 
as  security  to  satisfy  such  judgment  as  the  plaintiff  may  obtain,  until  by  due 
process  of  law  either  he  shall  sell  the  same  or  they  shall  be  withdrawn  from  his 
custody. 

§  IG.^The  defendant  in  any  writ  upon  which  goods  and  chattels  shall  have  been 
attached  may,  at  any  time  within  forty-eight  hours,  exclusive  of  Simday,  after 
such  attachment,  deliver  to  such  officer  a  bond  in  the  x^enal  sum  of  the  amount  of 
damages  laid  in  the  writ,  signed  by  the  defendant  or  some  one  in  his  behalf,  %vith 
sureties  to  the  satisfaction  of  such  officer,  with  a  condition  therein  that  the  same 
shall  be  null  and  void  if  the  final  judgment  in  the  action  in  which  such  writ  was 
served  shall  be  forthwith  paid  and  satisfied  after  the  rendition  thereof. 

§  17. — If  the  defendant  in  such  writ  shall  deem  the  damages  laid  therein  ex- 
cessive, he  may,  before  giving  such  bond,  complain  in  writing  to  any  justice  of  the 
court  from  which  such  ■«Tit  issued,  requesting  their  reduction,  anil  such  justice 
may,  after  due  notice  to  the  plaintiff  in  such  writ,  or  to  his  attorney,  and  upon 


RHODE    ISLAND.  673 

cause  stown,  reduce  such  damages,  and  the  amount  so  fixed  shall  be  the  penal  sum 
ill  such  bond. 

§  18. — Upon  accepting  a  bond  given  to  satisfy  a  judgment  as  herein  required, 
such  officer  shall  lodge  the  same  with  the  clerk  of  the  court,  if  there  be  a  clerk, 
otherwise  Avith  the  justice  of  the  court  to  which  the  writ  in  such  action  shall  be  re- 
turnable, and  shall  forthwith  surrender  the  goods  and  chattels  attached  by  him  to 
the  person  whose  interest  therein  shall  have  been  attached,  or  from  whose  posses- 
sion the  same  were  taken  by  virtue  of  such  writ. 

§  19. — If  the  defendant  in  such  writ  shall  not,  within  the  time  required,  either 
give  such  bond  or  a  bond  for  the  value  of  the  goods  and  chattels  attached,  in  the 
manner  by  law  jjrovided,  such  officer  shall  make  an  inventory  of  the  goods  and 
chattels  by  him  attached  upon  such  writ,  and  return  the  same  as  a  part  of  his  doings 
in  his  return  upon  such. 

§  20. — Every  officer  having  goods  and  chattels  attached  by  him  in  his  custody 
shall  suiTender  the  same  at  any  time  after  such  attachment  and  before  final  judg- 
ment to  the  person  whose  interest  therein  has  been  attached,  or  from  whose  posses- 
sion they  have  been  taken,  upon  being  tendered  a  bond  by  the  defendant,  or  some 
one  in  his  behalf,  with  sufficient  sureties  to  the  satisfaction  of  such  officer  in  double 
the  value  of  the  goods  and  chattels  so  attached,  or  in  the  penal  sum  of  the  amount 
of  damages  laid  in  said  writ,  with  condition  that  such  bond  shall  be  null  and  void 
if  at  any  time  after  final  judgment  in  the  action  in  which  such  attachment  shall 
have  been  rendered,  such  goods  and  chattels  shall  upon  request  therefor  be,  in  as 
good  order  and  condition  as  when  surrendered,  returned  to  the  officer  taking  such 
bond,  or  to  any  oflSicer  who  shall  be  charged  with  the  service  of  an  execution  levied 
upon  the  judgment  rendered  in  such  action,  unless  such  judgment  shall  have  been 
paid,  or  shall  be  immediately  paid,  together  with  the  costs  upon  such  execution,, 
upon  the  making  of  such  request,  or  the  return  of  such  goods  and  chattels. 

§  21. — If  the  defendant  in  any  vsrrit  shall  deem  the  damages  laid  therein  exces- 
sive, or  if  the  property,  either  real  or  personal,  held  under  any  attachment,  shall 
greatly  exceed  in  value  the  amount  of  the  damages  laid  in  such  writ,  such  defend- 
ant maj',  at  any  time  before  final  judgment,  complain,  in  writing,  to  any  justice  of 
the  court  from  which  such  writ  issued,  requesting  the  reduction  of  the  amount  of" 
such  damages  or  a  release  of  a  portion  of  the  property  attached,  and  such  justice 
may,  after  due  notice  to  the  plaintiff  in  such  writ  or  to  his  attorney,  and  upon  cause- 
shown,  order  such  damages  to  be  reduced  or  a  part  of  the  property  attached  to  be 
released,  and  thereafter  the  attachment  shall  be  deemed  to  be  reduced  or  partially 
released,  according  to  such  order. 

§  22. — Whenever  a  writ  shall  command  the  attachment  of  the  shares  of  the  de- 
fendant in  any  corporation,  or  of  his  personal  estate  in  the  hands  of  any  person,, 
copartnership  or  corporation  as  trustee,  it  shall  be  served  by  leaving  an  attested 
copy  thereof,  having  indorsed  thereon  the  date  and  time  of  day  of  such  service, 
with  the  person  or  some  member  of  the  copartnership  named  in  such  writ  as  trus- 
tee, or  if  such  trustee  or  the  corporation  whose  shares  shall  be  directed  to  be  at- 
tached shall  be  a  bank,  with  the  cashier  thereof;  if  an  insiu-ance  company,  with 
the  president  or  secretary  thereof;  and  if  any  other  coi-poration,  it  shall  be  served 
by  leaving  an  attested  copy  thereof  at  the  manufactory  where  the  person  is  em- 
ployed whose  wages  are  to  be  trusteed,  or  at  the  usual  place  where  the  payment  of 
said  wages  is  made,  upon  the  treasurer  thereof  or  the  person  executing  the  duties 
of  treasurer  thereof  or  the  agent  or  superintendent  thereof,  or  at  the  office  of  such 
corporation  with  some  person  there  employed,  and  such  officer  shall  also  leave  an 
attested  copy  of  such  writ  so  indorsed  with  the  defendant  or  at  his  last  and  usual 
place  of  abode,  or  if  he  have  none  within  the  precinct  of  such  officer,  the  latter  shall 
send  such  copy  to  the  defendant  by  mail,  if  his  address  is  known  to  or  can  be  ascer- 
tained by  such  officer. 

§  23. — Whenever  any  writ  of  attachment  shall  be  duly  served  upon  the  defend- 
ant by  any  officer  properly  charged  with  the  service  thereof  either  by  readingthe 
same  in  the  presence  and  hearing  of  such  defendant  or  by  giving  him  a  certified 
copy  thereof  in  hand  or  by  leaving  such  copy  at  his  last  and  usual  place  of  abode, 
such  service  shall  be  sufficient  to  bring  the  cause  of  action  upon  which  said  writ 
shall  have  been  issued  to  trial  upon  its  merits,  whether  any  valid  attachment  of 
l^roperty  shall  have  been  made  upon  said  writ  or  not. 

§  24. — If  the  property  attached  be  in  one  county,  and  the  defendant  be  or  have 
his  usual  place  of  abode  in  another  county,  the  attachment  may  be  made  by  any 

E roper  officer  of  the  county  where  the  property  is  situated,  and  the  defendant  may 
e  summoned  by  any  such  officer  of  any  other  county  where  the  defendant  may  be 
found  or  may  have  his  usual  place  of  abode:  Provided,  that  the  officer  making  th© 
U  Attachmeui— IS. 


674  RHODE    ISLAND. 

attachment  shall  not  be  required  to  send  a  copy  of  the  writ  by  mail  to  the  address 

of  the  defendant  in  case  the  summons  shall  Le  served  as  by  law  provided. 

§  25. — After  the  making  of  any  attachment  of  property  upon  any  such  writ  of 
attachment,  sulisequent  attachments  of  other  property  oJf  the  defendant  may  be 
made  by  any  projier  officer  at  any  time  before  the  defendant  Ls  served  with  the  said 
writ,  and  if  need  be,  the  plaintiff  may  amend  his  writ  for  the  purpose  of  having 
Buch  subsequent  attachment  made. 

§  26. — If  no  property  shall  have  been  attached  on  any  writ  of  attachment,  no 
costs  of  service  of  the  writ  of  attachment  shall  be  taxed  against  the  defendant. 

SEBVICE  UPON  NON-RESIDENT  GUARDIANS,   ADMINISTRATORS  AND  EXECUTORS. 

§  27.— Service  of  any  process  at  law  or  in  equity  may  be  made  by  any  disinter- 
ested person  upon  any  non-resident  guardian,  executor  or  administrator  appointed 
or  approved  by  any  court  of  probate  of  the  state,  by  reading  such  process  to  him 
or  by  leaving  an  attested  copy  thereof  with  him  or  with,  some  person  at  his  last  and 
usual  place  of  abode. 

GENERAL   PROVISIONS   RELATING  TO   SERVICE   BY  ATTACHMENT, 

§  28.^The  officer  to  whom  a  writ  of  attachment  shall  be  directed,  commanding 
therein  the  attachment  of  different  kinds  of  property,  shall  be  entitled  to  charge 
for  only  one  attested  copy  of  such  writ  for  any  one  person  with  whom  such  copy 
is  required  to  be  left. 

§  29. — Such  officer  shall  give  to  any  defendant,  his  agent  or  attorney,  or  any 
other  person  interested  in  any  action  in  which  a  writ  of  attachment  shall  have  been 
served,  upon  his  request,  an  attested  copy  thereof  with  his  doings  thereon,  upon 
being  paid  therefor  a  fee  of  twenty  cents  for  every  page  of  two  hundred  words  of 
BUch  copy. 

§  30.  — The  officer  who  shall  make  any  such  attachment  shall,  in  his  return,  set 
forth  the  time  of  the  day  when  such  attachment  was  made,  to  the  end  that  the 
priority  of  attachment  may  be  known. 

§  31. — Nothing  herein  contained  shall  be  so  construed  as  to  destroy  or  impair 
any  lien  or  claim  of  any  person  or  body  corporate  upon  any  stock  or  shares  at- 
tached under  the  pirovisions  of  this  chapter. 

§  32. — In  case  any  officer  shall  distrain  for  taxes,  or  by  any  warrant  of  distress 
whatsoever,  the  goods  and  chattels  of  any  person,  he  shall  proceed  in  the  same 
manner  and  be  holden  to  the  same  rules  as  hereinbefore  directed  in  attachments  in 
■civil  actions. 

§  33. — In  all  actions  at  law  or  in  equity  against  the  owners  of  telegraph  and 
telephone  lines  residing  out  of  the  state,  the  leaving  of  a  certified  copy  of  the  proc- 
ess, including  the  process  of  garnishment  by  the  proper  officer,  at  any  office  of  said 
owner.s,  within  the  state,  with  some  person  there  in  charge,  shall  be  deemed  a  legal 
and  sufficient  service. 

§  34. — No  civil  process  whatsoever  shall  be  served  on  Sunday,  but  every  such. 
.  service  shall  be  utterly  void. 


CHAPTER  208. 

CERTAIN  PROVISIONS   CONCERNING  ATTACHMENTS. 

§  1. — In  all  attachments  of  real  estate,  or  of  goods  and  chattels,  or  of  personal 
estate  in  the  hands  of,  a  trustee,  or  of  stock  or  shares  in  any  banking  association  or 
other  incorporated  company,  he  who  shall  first  procure  any  such  attachment  to  be 
made  for  any  just  debt  or  damages  shall  be  entitled  to  have  his  debt  or  damages 
satisfied  before  any  other  demand  for  which  the  same  shall  be  attached  or  taken  by 
■execution  at  the  suit  of  any  other  person,  and  all  others  in  order  of  attachment. 

§  2. — Whenever  any  officer  shall  attach  on  an  original  writ  any  live  animals  or 
any  goods  or  chattels  which  are  liable  to  perish  or  waste,  or  to  l^e  greatly  reduced 
in  value  by  keeping,  or  which  cannot  be  kept  without  great  and  disproportionate 
expense,  the  court  in  which  the  same  shall  be  pending  in  term  time,  or  any  justice 
thereof  in  vacation,  or  the  trial  justice  of  any  justice  court  in  which  such  •ni-it  shall 
be  pending,  may,  on  the  written  application  of  any  person  interested  in  such  prop- 
erty, cause  the  defendant  and  the  attaching  creditor,  their  attorneys  or  agents,  to 
be  notified  to  appear  at  a  time  and  place  appointed  for  that  purpose,  to  show  causa 
why  the  same  should  not  be  sold. 


RHODE    ISLAND.  675 

§  3. — If,  after  reasonable  notice,  no  person  appear,  or  no  sufficient  cause  to  the 
contrary  be  shown,  the  court  or  justice  may  direct  the  officer  to  sell  the  same,  in 
the  manner  jirescribed  by  law  for  selling  goods  and  chattels  on  execiition;  and  such 
officer  shall  bold  the  proceeds  of  such  sales,  after  deducting  therefrom  the  necessary- 
charges  thereof,  as  secm-ity  to  satisfy  such  judgment  as  the  attaching  creditor  may 
recover,  in  the  same  manner  as  if  he  held  the  property  itself. 

§  4. — Personal  estate,  when  mortgaged  and  in  the  possession  of  the  mortgagor, 
and  while  the  same  is  redeemable  at  law  or  in  equity,  may  be  attached  on  mesne 
process  against  the  mortgagor,  in  the  same  manner  as  his  other  personal  estate. 

§  5. — When  attached,  such  mortgaged  estate  may  be  sold,  upon  the  application 
of  the  mortgagee  or  of  either  of  the  parties  to  the  suit,  in  the  manner  provided  for 
the  sale  of  perishable  goods  and  chattels  when  attached  on  mesne  process. 

§  6. — Upon  any  such  sale,  the  attaching  officer  shall  ffi:st  apply  so  much  of  the 
proceeds  of  the  sale  as  may  be  necessary  to  pay  the  amount  for  which  the  said  prop- 
erty was  mortgaged,  with  such  deduction  for  interest  for  the  anticipated  payment, 
or  allowance  for  damages  for  such  anticipated  payment,  as  may  be  allowed  by  the 
court  or  judge  directing  the  sale;  and  the  officer  shall  hold  only  the  balance  for  the 
purposes  of  the  attachment. 

§  7. — The  plaintiff  in  any  such  attachment  may  redeem  the  mortgaged  estate  in 
the  same  manner  as  the  mortgagor  might  have  done,  and  in  case  of  such  redemp- 
tion the  plaintiff  shall  have  the  same  lien  on  the  property  for  the  amount  paid  by 
him,  with  interest,  as  the  mortgagee  had. 

§  S.^If  the  mortgage  be  not  redeemed  by  the  plaintiff  or  sold  as  before  men- 
tioned before  the  redemption  expires,  the  attachment  shall  become  void. 

I  9. — Whenever  any  banking  association  or  incorporated  company  shall  be 
served  with  a  copy  of  a  writ  attaching  its  stock  or  shares,  if  a  bank  the  cashier 
thereof,  if  an  insm-ance  company  the  president  or  secretary  thereof,  and  if  any 
other  corporation  the  treasurer  thereof  or  person  executing  the  duties  of  treasurer, 
shall  render  an  account  upon  oath  to  the  com-t  to  which  such  writ  shall  be  return- 
able of  what  stock  or  shares  the  defendant  had  in  such  company  at  the  time  of 
serving  such  writ. 

§  10. — The  person,  member  of  the  copartnership  or  officer  of  the  coi-poration 
with  whom  a  copy  of  a  writ  .shall  have  been  left  for  the  pmrpose  of  attachmg  the 
personal  estate  of  the  defendant  in  the  hands  or  possession  of  such  person,  ct)part- 
nership  or  corporation,  as  trustee,  shall  render  an  account,  in  writing,  upon  oath, 
to  the  covu-t  to  which  such  writ  is  returnable,  of  what  estate  such  person,  copart- 
nership or  corporation  had  in  his  hands  or  possession  at  the  time  such  writ  was 
served,  if  any,  or  if  he  had  none  either  directly  or  indirectly,  shall  retiu:n  such  fact 
in  writing,  under  oath,  to  such  court. 

§  11.— The  disclosure  made  by  virtue  of  either  of  the  two  preceding  sections 
shall  be  sworn  to  before  any  person  authorized  to  administer  oaths,  and  shall  be 
filed  with  the  clerk  of  the  court,  if  there  be  a  clerk,  otherwise  with  the  court  to 
which  such  writ  shall  be  returnable. 

§  12. — Either  party  may  examine  the  person  so  making  oath,  upon  vsritten  in- 
terrogatories, to  be  filed  with  such  clerk,  or  court,  if  there  be  no  clerk,  and  such  per- 
son, after  having  been  furnished  with  a  copy  of  such  interrogatories,  shall  answer 
the  same  responsively  in  -m-iting,  imder  oath  administered  as  aforesaid,  and  shall 
return  tlie  answer  to  such  clerk,  or  to  such  court,  if  there  be  no  clerk,  at  such  time 
as  such  coiu-t  shall  by  general  rule  or  by  special  order  in  such  case  direct. 

§  13.— If  it  shall  appear  by  the  disclosure  of  the  person  making  such  oath  that 
the  person,  copartnershiii  or  corporation  served  with  a  copy  of  such  -writ  had  at  the 
time  of  service  thereof  any  of  the  personal  estate  of  the  defendant  in  his  or  their 
hands,  then  and  in  such  case  the  plaintiff,  after  having  recovered  judgment  against 
such  defendant,  may  bring  his  action  against  such  person,  copartnership  or  corpo- 
ration to  recover  so  much  as  will  satisfy  such  judgment,  with  interest  and  costs,  _  if 
there  shall  appear  by  such  disclosure  to  be  a  sufficiency  for  the  same,  otherwise 
for  so  much  as  shall  appear  by  the  same  to  be  in  his  hands. 

§  14. — Whenever  it  shaU  appear  that  several  persons,  copartnerships  or  corpo- 
rations had  property  of  the  defendant  as  such  trustee,  the  plaintiff  may  sue  each 
separately  and  recover  the  amoimt  in  his  hands,  until  such  plaintiff  shall  receive 
full  payment  of  his  judgement  against  the  original  defendant,  with  interest  and 
costs. 

§  15.— Any  trustee,  after  final  judgment  against  the  defendant,  may  satisfy 
such  judgment  or  any  part  thereof,  to  the  amount  of  the  estate  attached  in  hia 


676  RHODE    ISLAND. 

hands,  before  any  suit  shall  be  brought  against  him  therefor,  and  such  payment 
shall  avail  for  his  discharge,  as  against  both  plaintiff  and  defendant,  for  the  amount 
thereof. 

§  16. — If  it  shall  appear  by  the  disclosure  that  the  personal  estate  in  the  hands 
of  the  trustee  belonging  to  the  defendant  did  not  consist  of  monej-,  but  of  one  or 
more  specific  articles,  such  trustee  may,  after  final  judgment  shall  have  been  ren- 
dered against  the  defendant,  surrender  or  deliver  to  the  officer  charged  with  the 
execution  issued  on  such  judgment  such  specific  articles,  that  the  same  may  be 
taken  on  such  execution. 

§  17.  —Such  surrender  or  delivery  shall  be  a  good  discharge  to  the  trustee  for 
Buch  articles,  as  to  both  plaintiff  and  defendant  iu  the  action. 

§  18. — If  any  person,  copartnership  or  corporation,  after  being  served  as  trustee 
with  a  copy  of  any  writ,  and  after  having  been  tendered  at  the  time  of  such  serv- 
ice two  dollars  and  his  traveling  fees  as  a  witness  in  the  supreme  court  or  court  of 
common  pleas,  and  one  dollar  and  like  traveling  fees  in  any  other  court,  shall  re- 
fuse or  neglect  to  render  such  an  account  on  oath  as  aforesaid,  of  what  personal 
estate  of  the  defendant  he  had  in  his  hands  at  the  time  of  the  service  of  such  copy, 
such  trustee  shall  be  liable  to  satisfy  the  judgment  that  the  plaintiff  shall  obtain 
against  the  defendant  in  such  writ,  to  be  recovered  by  action  on  the  case,  except  as 
provided  in  section  twenty-two,  chapter  two  hiindred  twenty-two. 

§  19. — If  several  trustees  shall  neglect  or  refuse  to  render  an  account  upon  oath 
in  the  same  case,  then  the  plaintiff  shall  bring  his  action  against  all  such  trustees 
jointly,  and  in  no  other  manner. 

§  20. — Every  person  who  shall  be  served  with  such  copy  of  a  writ  against  any 
defendant  may  file  an  answer  to  such  action,  and  defend  the  suit  in  behalf  and  in 
the  name  of  the  defendant. 

§  21. — If  it  shall  appear  by  such  disclosure  that  the  person,  copartnership  or 
corporation  who  had  been  served  as  trastee  with  a  copy  of  such  writ  had  not  any 
of  the  personal  estate  of  the  defendant  in  his  hands,  then  such  action  shall  be  dis- 
missed and  the  person  who  shall  appear  to  defend  the  same  shall  recover  his  costs, 
unless  the  writ  has  been  duly  served  on  the  defendant. 

§  22. — Every  person,  copartnership  or  corporation  served  with  a  copy  of  a  writ 
for  attaching  the  estate  of  another  in  their  hands  shall  be  paid  all  lawful  costs  and 
charges  which  they  shall  incur  in  consequence  of  their  being  served  mth  such  writ  of 
attachment  by  the  person  who  brings  the  action,  and  so  much  of  such  charge  as 
shall  be  judged  reasonable  by  the  court  before  whom  the  cause  shall  be  pending 
shall  be  allowed  in  the  bill  of  costs. 

§  23. — The  word  trustee,  wherever  occurring  in  this  title,  shall  be  deemed  to  in- 
clude the  words  attorney,  agent,  factor  and  debtor. 


CHAPTEE  433. 

AS  ACT  IN  AMENDSfEXT  OF  AND  IN  ADDITION  TO  CHAPTER  TWO  HrNDRED  AND 
EIGHT  OP  THE  PUBLIC  STATUTES,  ENTITLED  "  OP  CEETAIN  PROVISIONS  CON- 
CERNING ATTACHMENTS." 

§  1. — Whenever  the  personal  estate  of  any  defendant  is  attached  on  trustee 
process,  any  person  claiming  said  personal  estate  under  an  assignment  or  otherwise 
may,  on  his  owa  motion,  become  a  party  to  the  action  so  far  as  respects  the  title  to 
said  personal  estate. 

§  2. — The  answer  sworn  to  by  a  trustee  shall  be  considered  true  in  deciding  how 
far  such  trustee  is  chargeable;  but  either  party  to  the  suit,  or  any  claimant  of  the 
estate  so  attached,  may  allege  and  prove  any  facts  not  stated  nor  denied  by  said 
trustee  that  may  be  material  in  so  deciding. 

§  3. — Any  question  of  fact  arising  upon  such  additional  allegations  may  be  tried 
and  determined  by  the  coiu-t  or  justice,  and  in  the  court  of  common  pleas,  and  in 
the  supreme  court  the  same  may  be  submitted  to  a  jiiry  in  such  manner  as  the 
court  shall  direct. 

§  4. — No  assignment  of  future  eaxnings  hereafter  made  shall  be  valid  except  as 
between  the  parties  thereto  until  the  ^ame  has  been  recorded  in  the  oflice  of  the 
town  clerk,  or  of  the  recorder  of  deeds,  as  the  case  may  be,  of  the  town  where  the 
assignor  resides,  if  a  resident  of  this  state,  ia  the  oflice  of  the  town  clerk  or  of  the 


SOUTH   CAROLINA.  G77 

recorder  of  deeds,  as  the  case  may  be,  in  the  town  where  said  assignor  is  employed, 
in  a  book  kept  for  that  pui'pose.  [Amended  by  acts  of  January,  1884,  p.  184,  and 
May,  1884,  p.  13.] 

§  5. — In  all  cases  the  costs  may  be  apportioned  either  for  or  against  the  claim- 
ant in  the  manner  prescribed  in  section  5  of  chapter  217  of  the  Public  Statutes. 

§  6. — This  act  shall  take  effect  on  and  after  the  first  day  of  July,  a.  d.  1884. 


NO.  115. 

FOBEIGN  ATTACHMENT  TO  ACTIONS  EX  DELICTO. 

§  1. — The  forty-second  section  of  an  act  relating  to  commencement  of  actions, 
approved  the  thirteenth  day  of  June,  Anno  Domini  one  thousand  eight  hundred 
and  thirty-six,  is  so  amended  as  to  allow  the  issuing  of  a  writ  of  foreign  attach- 
ment, i)rescribed  by  the  forty-third  section  of  said  act,  in  all  cases  wherein  any 
person  who,  being  a  resident  of  this  commonwealth,  shall  have  removed  therefrom, 
after  having  become  liable  in  an  action  ex,  delicto. 

§  2. — But  no  such  writ  shall  issue  in  the  cases  provided  by  this  supplement,  ex- 
cept upon  oath  or  affirmation,  previously  made  by  the  25erson  having  such  right  of 
action  ex.  delicto,  or  by  some  one  in  his  behalf,  of  the  truth  of  the  claim  and  of  the 
facts  upon  which  such  attachment  shall  be  founded,  as  well  as  that  he  verily  be- 
lieves that  the  person  has  removed  to  escape  service  of  jarocess  to  answer  for  such 
alleged  tort,  which  oath  or  affirmation  shall  be  filed  of  record. 

§  3.— All  the  proceedings  subsequent  to  the  issue  of  such  writ  of  foreign  attach- 
ment in  the  cases  aforesaid  shall  be  the  same  as  those  provided  by  the  act  to  which 
this  is  a  supplementf.&nd  the  various  supplements  thereto. 

§  4. — The  remedy  provided  by  this  supplement  shall  be  in  addition  to  all  other 
remedies  provided  by  law,  in  actions  ex  delicto.  [Ajaproved  the  15th  day  of  May, 
A.  D.  1874.] 

Pending  appeal — Page  605,  sec.  7;  p.  606,  sec.  12. 

Execution  against  goods  in  hands  of  trustee,  and  relief  of  tmstee  —Page  611,. 
sees.  20-22. 

Dissolved  by  assignment — Page  659,  sec.  12. 

Exemptions — Page  541,  sec.  29;  p.  575.  sec.  4;  p  755,  sec.  69. 


SOUTH  CAROLINA. 

[General  Statutes,  1882;  Code  of  Civil  Procedure.] 


CHAPTER  4. 

ATTACHMENT. 


§  248. — In  any  action  arising  for  the  recovery  of  money  or  for  the  recovery  of 
property,  whether  real  or  personal,  and  damages  for  the  wrongful  conversion  and 
detention  of  personal  property,  or  an  action  for  the  recovery  of  damages  for  injury 
done  to  either  person  or  pi-operty,  or  against  a  corporation  created  by  or  under  the 
laws  of  any  other  state,  government,  or  country,  or  against  a  defendant  who  is  not 
a  resident  of  this  state,  or  against  a  defendant  who  has  absconded  or  concealed 
himself,  or  whenever  any  person  or  corporation  is  about  to  remove  any  of  his  or 
its  property  from  this  state,  or  has  assigned,  disposed  of,  or  secreted,  or  is  about  to 
assign,  disj>ose  of,  or  secrete  any  of  his  or  its  property,  with  intent  to  defraud 
creditors,  as  hereinafter  mentioned,  the  ])laintiff,  at  the  time  of  issuing  the  sum- 
mons, or  a)iy  time  afterward,  may  have  the  prox^ei-ty  of  such  defendant  or  coi-iJO- 


678  SOUTH   CAROLINA. 

ration  attached,  in  the  manner  hereinafter  prescribed,  as  a  security  for  the 
satisfaction  of  such  judgment  as  the  ijlaintiff  may  recover;  and,  for  the  purposes 
of  this  section,  an  action  shall  be  deemed  commenced  when  the  summons  is  issued: 
Provided,  however,  that  personal  service  of  such  summons  shall  be  made  or  pub- 
lication thereof  commenced  within  thirty  days. 

§  249. — A  warrant  of  attachment  must  be  obtained  from  a  judge,  or  clerk  of 
the  court,  or  trial  justice,  in  which  or  before  whom  the  action  is  brought,  or  from 
a  circuit  judge. 

§  250. — The  warrant  may  be  issued  whenever  it  shall  appear  by  affidavit  that  a 
cause  of  action  exists  against  such  defendant,  specifying  the  amount  of  the  claim 
and  the  groimds  thereof,  and  that  the  defendant  is  either  a  foreign  corporation  or 
not  a  resident  of  .this  state,  or  has  departed  therefrom  with  intent  to  defraud  his 
creditors,  or  to  avoid  the  service  of  a  summons,  or  keeps  himself  concealed  therein, 
with  the  like  intent,  or  that  such  corporation  or  person  has  removed,  or  is  about  to 
remove,  any  of  his  or  its  property  from  this  state,  with  intent  to  defraud  his  or  its 
creditors,  or  has  assigned,  disjjosed  of,  or  secreted,  or  is  about  to  assign,  dispose  of, 
or  secrete,  any  of  his  or  its  property,  with  the  like  intent,  whether  such  defendant 
be  a  resident  of  this  state  or  not. 

It  shall  be  the  duty  of  the  plaintifif  procuring  such  warrant,  within  ten  days 
after  the  issuing  thereof,  to  cause  the  affidavits  on  which  the  same  was  granted  to 
be  filed  in  the  office  of  the  clerk  of  the  court  of  common  pleas,  or  with  the  trial 
justice,  in  which,  or  before  whom,  the  action  is  to  be  tried. 

§  251. — Before  issuing  the  warrant,  the  judge,  clerk,  or  trial  justice  shall  require 
a  written  undertaking,  on  the  part  of  the  plaintiif,  with  sufficient  surety,  to  the 
effect  that  if  the  defendant  recover  judgment,  or  the  attachment  be  set  aside  by 
order  of  the  court,  the  plaintiff  will  pay  aU  costs  that  may  be  awarded  to  the 
defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  sum  specified  in  the  undertaking,  which  shall  be  at  least  two 
hundred  and  fifty  dollars,  except  in  case  of  a  warrant  issued  by  a  trial  justice, 
when  it  shall  be  at  least  twenty -five  dollars. 

§  252. — The  warrant  shall  be  directed  to  any  sheriff  or  constable  of  any  county 
in  which  property  of  such  defendant  may  be,  and  shall  require  him  to  attach  and 
safely  keep  all  the  property  of  such  defendant  ■\vithin  his  county,  or  so  much 
thereof  as  may  be  sufficient  to  satisfy  the  plaintiff's  demand,  together  with  costs 
and  expenses,  the  amoimt  of  which  must  be  stated  in  conformity  with  the  com- 
plaint, together  with  costs  and  expenses.  Several  warrants  may  be  issued  at  the 
same  time  to  the  sheriffs  or  constables  of  different  counties. 

§  25.3. — The  sheriff  or  constable  to  whom  such  warrant  is  directed  and  delivered 
shall  immediately  attach  all  the  real  estate  of  such  debtor,  and  all  his  personal 
estate,  including  money  and  bank-notes,  except  such  real  and  personal  estate  as  is 
exempt  from  attachment,  levy,  or  sale,  by  the  constitution,  and  shall  take  into  his 
custody  all  books  of  account,  vouchers,  and  papers  relating  to  the  property,  debts, 
credits  and  effects  of  such  debtor,  together  with  all  evidences  of  his  title  to  real 
estate,  which  he  shall  safely  keep,  to  be  disposed  of  as  hereinafter  directed. 

When  real  estate  is  attached,  a  true  ond  attested  copy  of  such  attachment, 
together  with  a  description  of  the  real  estate  attached,  shall  be,  by  the  officer 
serving  the  same,  delivered  to  the  party  whose  real  estate  is  attached,  or  left  at 
his  last  and  usual  place  of  abode;  and  the  officer  making  such  service  shall  also 
leave  a  true  and  attested  copy  of  such  attachment,  together  with  a  description  of 
the  real  estate  so  attached,  in  the  office  where,  by  law,  a  deed  of  such  estate  is 
required  to  be  recorded;  and,  if  the  party  whose  estate  is  attached  does  not  reside 
in  this  state,  then  such  copy  shall  be  delivered  to  his  tenant,  agent,  or  attorney,  if 
any  be  known;  and  if  no  such  agent,  tenant,  or  attorney,  be  known,  then  a  copy 
of  such  warrant  of  attachment,  with  the  officer's  return  thereon,  lodged  iu  the 
office  where,  by  law,  a  deed  of  such  real  estate  ought  to  be  recorded,  shall  be 
deemed  sufficient  service.  It  shall  be  the  duty  of  the  clerk  or  register  of  the  office 
wherein  said  warrant  of  attachment  is  required  to  be  lodged,  to  receive  the  same, 
and  enter  in  a  book  kept  for  that  purpose  the  names  of  the  parties,  the  date  of  the 
warrant  of  attachment,  the  sum  demanded,  and  the  officer's  return  thereon.  Said 
attachment  shall  be  a  lien,  subject  to  all  prior  liens,  and  bind  the  real  estate  at- 
tached from  the  date  of  lodgment:  Provided,  that  all  attachments  lodged  upon  the 
same  day  shall  take  rank  together. 

§  254. — He  shall,  immediately  on  making  such  seizure,  -with  the  assistance  of 
two  disinterested  freeholders,  make  a  just  and  true  inventory  of  all  the  property 
so  seized,  and  of  the  books,  vouchers,  and  papers  taken  into  custody,  stating 
therein  the  estimated  value  of  the  several  articles  of  personal  property,  and  enu- 
merating such  of  them  as  are  perishable,  which  inventory,  after  being  signed  by 


SOUTH   CAROLINA.  679 

the  sheriff  and  appraisers,  shall,  Avithin  ten  days  after  such  seizure,  be  returned  to 
the  officer  who  issued  the  warrant;  and  the  sheriff  or  constable  shall,  under  the 
direction  of  such  officer,  collect,  receive,  and  take  into  his  possession,  all  debts, 
credits,  and  effects  of  such  debtor,  and  commence  such  suits,  and  take  such  legal 
proceedings,  either  in  his  own  name  or  in  the  name  of  such  debtor,  as  may  be  nec- 
essary for  that  purpose,  prosecute  and  discontinue  the  same  at  such  times,  and  on 
such  terms,  as  the  court  may  direct.  The  jiroperty  so  seized,  or  the  proceeds  of 
cuch  as  shall  have  been  sold  and  debts  collected,  shall  be  kept  to  answer  any  judg- 
ment which  may  be  obtained  in  such  action. 

§  255.— If  any  property  so  seized  shall  be  perishable,  or  if  any  jjart  of  it  be 
claimed  by  any  other  jjerson  than  such  defendant,  or  if  any  jmrt  of  it  consist  of  a 
vessel,  or  of  any  share  or  interest  therein,  the  same  proceedings  shall  be  had,  in 
all  respects,  as  are  provided  by  law  upon  attachments  against  absent  debtors.  If 
the  person  in  whose  possession  such  i^roperty  shall  be  attached  shall  appear  at  the 
return  of  the  writ  and  iile  his  answer  thereto,  and  deny  the  possession  or  control 
of  any  property  belonging  to  the  defendant,  or  claim  the  money,  lands,  goods  and 
chattels,  debts  and  books  of  account,  as  creditor  in  possession,  or  in  his  own  right, 
or  in  right  of  some  third  person,  then  if  the  plaintiff  be  satisfied  therewith,  the 
party  in  possession  shall  be  dismissed  and  the  i^laintiff  pay  the  cost  of  his  return. 
But  if  the  i^laintiff  shall  contest  the  said  return,  an  issue  shall  be  made  up  under 
the  direction  of  the  judge  to  try  the  question.  And  the  court  shall  direct  the  time 
and  place  of  trial;  and  the  party  that  shall  prevail  in  said  issue  shall  recover  his 
full  costs  of  the  opposite  party,  and  judgment  shall  be  given  accordingly.  But  if 
the  party  in  possession  reside  in  a  different  county  from  that  in  which  the  action. 
is  brought,  and  an  issue  be  made  up  between  him  and  the  jjlaintiff,  the  action  shall 
be  tried  in  the  county  where  the  party  in  i^ossession  resides. 

§  256. — The  rights  or  shares  which  such  defendant  may  have  in  the  stock  of  any 
association  or  corporation,  together  -with  the  interest  and  profits  thereon,  and  all 
other  property  in  this  state  of  such  defendant,  except  that  exempt  from  attachment 
by  the  constitution,  shall  be  liable  to  be  attached  and  levied  upon,  and  sold  to 
satisfy  the  judgment  and  execution. 

§  257. — The  execution  of  the  attachment  upon  any  such  rights,  shares,  or  any 
debts  or  other  property  incai^able  of  manual  delivery  to  the  sheriff  or  constable, 
shall  be  made  by  leaving  a  certified  copy  of  the  warrant  of  attachment  with  the 
president  or  other  head  of  the  association  or  corporation,  or  the  secretary,  cashier, 
or  managing  agent  thereof,  or  with  the  debtor  or  individual  holding  such  property, 
with  a  notice  showing  the  property  levied  on. 

§  258. — Whenever  the  sheriff  or  constable  shall,  with  a  warrant  of  attachment 
or  execution  against  the  defendant,  apjjly  to  such  officer,  debtor,  or  individual, 
for  the  purjiose  of  attaching  or  levying  upon  such  property,  such  officer,  debtor,  or 
individual  shall  furnish  him  with  a  certificate,  under  his  hand,  designating  the 
number  of  rights  or  shares  of  the  defendant  in  the  stock  of  such  association  or  cor- 
poration, with  any  dividend  or  incumbrance  thereon,  or  the  amount  and  description 
of  the  property  held  by  such  association,  corporation,  or  individual,  for  the  benefit 
of  or  debt  owing  to  the  defendant.  If  such  officer,  debtor,  or  individual  refuse  to 
do  so,  he  may  be  required  by  the  court  or  judge  to  attend  before  him,  and  be  ex- 
amined on  oath  concerning  the  same,  and  obedience  to  such  order  may  be  enforced 
by  attachment. 

§  259. — In  case  judgment  be  entered  for  the  plaintiff  in  such  action,  the  sheriff 
or  constable  shall  satisfy  the  same  out  of  the  property  attached  by  him,  if  it  shall 
be  sufficient  for  that  purpose: 

1.  By  paying  over  to  such  plaintiff  the  proceeds  of  all  sales  of  perishable  prop- 
erty, and  of  any  vessel,  or  share  or  interest  in  any  vessel,  sold  by  him,  or  of  any 
debts  or  credits  collected  by  him,  or  so  much  as  shall  be  necessary  to  satisfy  such 
judgment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  such 
judgment,  he  shall  proceed  to  sell,  under  such  execution,  so  much  of  the  attached 
property,  real  or  personal,  except  as  provided  in  subdivision  fom-  of  this  section, 
as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose  shall  remain 
in  his  hands;  and,  m  case  of  the  sale  of  any  rights  or  shares  in  the  stock  of  a  cor- 
poration or  association,  the  sheriff  or  constable  shall  execute  to  the  purchaser  a 
certificate  of  sale  thereof,  and  the  purchaser  shall  thereupon  have  all  the  rights  and 
privileges  in  respect  thereto  which  were  had  by  such  defendant. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant  shall  have  passed 
out  of  the  hands  of  the  sheriff  or  constable  without  having  been  sold  or  converted 
into  money,  such  sheriff  or  constable  shall  repossess  himself  of  the  same,  and  for 
that  purpose  shall  have  all  the  authority  which  he  had  to  seize  the  same  under  the 


680  SOUTH    CAROLINA. 

ftttaehment;  and  any  person  who  shall  willfully  conceal  or  withhold  such  property 
from  the  sheriff  or  constable,  shall  be  liable  to  double  damages,  at  the  suit  of  the 
party  injured. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the  sheriff  or  con- 
stable may  proceed  to  collect  the  notes  and  other  evidence.^  of  debt,  and  the  debts 
that  may  have  been  seized  or  attached  under  the  warrant  of  attachment,  and  to 
prosecute  any  bond  he  may  have  taken  in  the  course  of  such  proceedings,  and  apply 
the  proceeds  thereof  to  the  payment  of  the  judgment. 

At  the  expiration  of  six  months  from  the  docketing  of  the  judgment,  the  court 
shall  have  power,  upon  the  jjetition  of  the  plaintiff  accompanied  by  an  affidavit, 
setting  forth  fully  all  the  proceedings  which  have  been  had  by  the  sheriff  or  con- 
stable since  the  service  of  the  attachment,  the  property  attached,  and  the  disposi- 
tion thereof,  and  also  the  affidavit  of  the  sheriff  or  constable  that  he  has  used 
diligence  and  endeavored  to  collect  the  e\ddences  of  debt  in  his  hands  so  attached, 
and  that  there  remains  uncollected  of  the  same  any  i>art  or  portion  thereof,  to 
order  the  sheriff  or  constable  to  sell  the  same,  upon  such  terms  and  in  such  man- 
ner as  shall  be  deemed  proper.  jSTotice  of  such  application  shall  be  given  to  the 
defendant,  or  hi^  attorney,  if  the  defendant  shall  have  ajjpeared  in  the  action.  In 
case  the  summons  has  not  been  personally  served  on  the  defendant,  the  court  shall 
make  such  rule  or  order,  as  to  the  service  of  notice  and  the  time  of  service,  as  shall 
be  deemed  just. 

When  the  judgment  and  all  costs  of  the  proceedings  shall  have  been  paid,  the 
sheriff  or  constable,  upon  reasonable  demand,  shall  deliver  over  to  the  defendant 
the  residue  of  the  attached  property,  or  the  proceeds  thereof. 

§  2G0. — The  action.s  herein  authorized  to  be  brought  by  the  sheriff  or  constable 
may  be  prosecuted  by  the  plaintiff,  or  under  his  direction,  upon  the  delivery  by 
him  to  the  sheriff  or  constable  of  an  undertaking  executed  hy  two  sufacient  sure- 
ties, to  the  effect  that  the  plaintiff  will  indemnify  the  sheriff  or  constable  from  aU 
damages,  costs,  and  expenses  on  account  thereof,  not  exceeding  two  hundred  and 
fifty  dollars  in  any  one  action.  Such  sureties  shall,  in  all  cases,  when  required  by 
the  sheriff  or  constable,  justify  by  making  an  affidavit  that  each  is  a  householder, 
and  worth  double  the  amount  of  the  penalty  of  the  bond,  over  and  above  all 
demands  and  liabilities. 

§  2G1. — If  the  foreign  corporation,  or  absent  or  absconding  or  concealed  defend- 
ant, recover  judgment  against  the  plaintiff  in  such  action,  any  bond  taken  by  the 
sheriff  or  constable,  except  such  as  are  mentioned  in  the  last  section,  all  the  pro- 
ceeds of  sales  and  moneys  collected  by  him,  and  all  the  property  attached  remain- 
ing in  his  hands,  shall  be  delivered  by  him  to  the  defendant,  or  his  agent,  on 
request,  and  the  wan-ant  shall  be  discharged  and  the  property  released  therefrom. 

§  202. — Whenever  the  defendant  shall  have  appeared  in  such  action,  he  may 
apply  to  the  officer  who  issued  the  attachment,  or  to  the  court,  for  an  order  to 
discharge  the  same;  and,  if  the  same  be  granted,  all  the  jiroceeds  of  sales  and 
moneys  collected  by  him,  and  all  the  property  attached  renuuning  in  his  hands, 
shall  be  delivered  or  paid  by  him  to  the  defendant  or  his  agent,  and  released  from 
the  attachment.  And  where  there  is  more  than  one  defendant,  and  the  several 
property  of  either  of  the  defendants  has  been  seized  by  virtue  of  the  order  of 
attachment,  the  defendant  whose  several  property  has  been  seized  may  apply  to 
the  officer  who  issued  the  attachment  for  relief  under  this  section. 

§  263.  — Upon  such  application,  the  defendant  shall  deliver  to  the  court  or  officer 
an  undertaking  executed  by  at  least  two  siu-eties,  who  are  resident  and  freeholders 
or  householders  in  this  state,  approved  by  such  court  or  officer,  to  the  effect  that 
such  sureties  will,  on  demand,  pay  to  the  plaintiff  the  amount  of  judgment  that 
may  be  recovered  against  the  defendant  in  the  action,  not  exceeding  the  sum  speci- 
fied in  the  imdertaking,  which  shall  be  at  least  double  the  amount  claimed  by  the 
plaintiff  in  his  complaint.  If  it  shall  appear  by  affidavit  that  the  pro joerty  attached 
be  les3  than  the  amount  claimed  by  the  plaintiff,  the  court,  or  officer  issuing  the 
attachment,  may  order  the  same  to  be  appraised,  and  the  amoimt  of  the  under- 
taking shall  then  be  double  the  amount  so  appraised.  And  in  all  cases  the  defend- 
ant, or  any  person  who  establishes  a  right  to  the  property  attached,  may  move  to 
discharge  the  attachment,  as  in  the  case  of  other  provisional  remedies. 

And  where  there  is  more  than  one  defendant,  and  the  several  proi>erty  of  either 
of  the  defendants  has  been  seized  by  virtue  of  the  order  of  attachment,  the  defend- 
ant whose  several  property  has  been  seized  may  deliver  to  the  coiu't  or  officer  an 
undertaking,  in  accordance  %vith  the  jirovisions  of  this  section,  to  the  effect  that 
he  will,  on  demand,  pay  to  the  plaintiff  the  amount  of  judgment  that  may  lie  re- 
covered against  sucli  defendant.  And  all  the  provisions  of  this  section  applicable 
to  such  undertaking  shall  be  applied  thereto. 


TENNESSEE.  681 

§  204.— \^Tien  the -warrant  shall  be  fully  executed  or  discharged,  the  sheriff  or 
con'stal)le  shall  return  the  same,  with  his  proceedings  thereon,  to  the  court  in  which 
the  action  was  brought. 


Before  justices— Sees.  71,  88,  807. 
In  mechanics'  liens  —Sees.  237(3-2380^ 
On  vessels— Sec.  2392. 

Exemptions— Public  property,  sec.  440;  homestead,  sec.  1994;  personal  prop- 
erty, sec.  1999;  none  for  purchase-money,  sec.  2001. 

Costs— Plaintiff's,  sec.  2426;  guardian's,  sec.  329;  assignee's,  sec  334. 


TENNESSEE. 

pMiLLiKEN  &  Ventree's  Code,  1884.] 


FOR    WHAT    CAUSES    AN    ATTACHMENT    MAY    ISSUE,    IN    WHOSE   FAVOR,    BT   WHOK 
GRANTED,    AND   TO   WHAT  TRIBUNALS   RETURNED. 

§  4192. — Any  person  having  a  debt  or  demand  due  at  the  commencement  of  an 
action,  or  having  a  claim  for  damages  for  a  tort;  or,  a  plaintiff,  after  action  for  any 
cause  has  been  brought,  and  either  before  or  after  judgment,  may  sue  out  an  attach- 
ment at  law  or  in  equity  against  the  profierty  of  a  debtor  or  defendant  in  the  fol- 
lowing cases: 

1.  Where  the  debtor  or  defendant  resides  out  of  the  state. 

2.  Where  he  is  about  to  remove,  or  has  removed  himself  or  property  from  the 
state. 

3.  Where  he  has  removed,  or  is  removing  himself  out  of  the  county  privately. 

4.  Where  he  conceals  himself,  so  that  the  ordinary  process  of  law  cannot  be 
served  upon  him. 

5.  Where  he  absconds,  or  is  absconding,  or  concealing  himself  or  property. 

6.  Where  he  has  fraudulently  disposed  of,  or  is  about  fraudulently  to  dispose 
of,  his  property. 

7.  Where  any  person  liable  for  any  debt  or  demand,  residing  out  of  the  state, 
dies,  leaving  property  in  the  state. 

§  4193.  —When  the  debtor  and  creditor  are  both  non-residents  of  this  state, 
and  residents  of  the  same  state,  the  creditor  shall  not  have  attachment  against  the 
property  of  his  debtor  unless  he  swear  that  the  property  of  the  debtor  has  been 
fraudulently  removed  to  this  state  to  evade  the  larocess  of  law  in  the  state  of  their 
domicil  or  residence. 

§  4194. — An  attachment  may,  in  like  manner,  be  sued  out  upon  debts  or  demands 
not  due,  in  any  of  the  cases  mentioned  in  the  preceding  section  except  the  first, 
when  the  debtor  or  defendant  resides  out  of  the  state. 

§  419.5. — Any  accommodation  indorser  or  surety  may,  in  like  manner,  sue  out 
an  attachment  against  the  property  of  his  principal,  as  a  secm-ity  for  his  liability, 
whether  the  debt  on  which  he  is  bound  be  due  or  not. 

§4190. — But  no  final  judgment  or  decree  shall  be  rendered  iipon  such  attach- 
ment, until  the  debt  or  demand  upon  which  it  is  based  becomes  due;  nor  shall  any 
property  levied  upon  thereby  be  sold,  until  final  judgment  or  decree,  except  prop- 
erty of  a  perishable  natiure,  which  may  be  sold  as  in  other  attachment  cases. 

§4197. —And  the  attachment  by  indorser  or  surety  shall  be  dischai-ged,  if  the 
principal  will  give  bond  and  security,  to  be  approved  by  the  court,  in  term-time, 
or  its  clerk  in  vacation,  to  indemnify  the  plaintiff. 

§419S.—Suitsby  original  attachment  may  be  brought  in  any  com-t,  or  before 
any  magistrate,  having  jurisdiction  of  the  cause  of  action. 


682  TENNESSEE. 

§4199. — Any  person  may  also  sue  out  an  attachment  in  the  chancery  court, 
upon  debts  or  demands  of  a  purely  legal  nature,  except  causes  of  action  founded 
on  torts,  without  first  having  recovered  a  judgment  at  law,  whenever  the  amount 
in  controversy  is  sufficient  to  give  the  court  juiisdiction. 

§  4200,— When  any  non-resident  having  choses  in  action,  or  other  property,  in 
this  state,  is  rudebted  to  another  non-resident,  who  is  himself  indebted  to  any  per- 
son, resident  or  non-resident,  such  person,  without  first  having  recovered  a  judgment 
at  law,  may  file  a  bill  in  equity,  to  have  such  choses  in  action,  or  other  property, 
attached,  making  said  non-resident  debtors,  and  the  person  in  possession  of  such 
choses  in  action,  or  other  property,  defendants  to  said  bill. 

§  4201. — Attachments  sued  out  in  aid  of  a  suit  already  brought,  shall  be  made 
returnable  to  the  court  or  justice  before  whom  the  suit  is  pending. 

§  4202. — The  attachment  may  be  granted  by  any  judge  of  the  circuit,  criminal 
or  special  court,  by  any  chancellor  or  justice  of  the  peace,  or  by  the  clerk  of  the 
court  to  which  the  attachment  is  made  returnable. 

§  420.3. — In  all  suits  commenced  by  original  attachment  in  any  court  of  record, 
or  before  a  justice  of  the  peace,  it  shall  be  the  duty  of  the  clerk  or  justice  issuing 
the  attachment  to  issue  also,  upon  application  of  the  plaintiff,  a  summons  against 
the  defendant  for  the  same  cause  of  action;  and,  if  the  summons  is  executed,  no 
publication  shall  be  made,  and  there  shall  be  no  stay  of  judgment  as  now 
required  by  law  in  attachment  cases  where  the  defendant  is  made  a  party  by  at- 
tachment and  publication  only. 

§  4204.— The  summons  shall  be  in  the  usual  form,  except  that  it  shall  also 
notify  the_  defendant  that  an  original  attachment  suit  has  been  commenced  against 
him,  and  it  shall  be  returned  to  the  same  court  or  justice  as  the  attachment. 

§  420.5. — The  process  of  attachment  issues  against  the  property  of  the  defendant 
wherever  the  same  may  be  found. 

§  4206.  — The  officer  granting  the  attachment  may  direct,  upon  proper  applica- 
tion, that  counterpart  writs  of  attachment  issue  to  any  coimty  in  which  property 
of  the  defendant  may  be  found,  or  such  coimterparts  may  be  subsequently  applied 
for  and  obtained  upon  good  cause  shown. 

§4207. — In  any  civil  action,  when  the  summons  has  been  returned  "Not  to  be 
found  in  my  county,"  as  to  all  or  any  one  of  the  defendants,  residents  of  the  county, 
the  platatiff  may  have  an  alias  and  phwies  summons  for  the  defendant,  or,  at  lua 
election,  sue  out  attachment  against  the  estate  of  such  defendant. 

§  4208. — Upon  the  return  of  the  attachment  levied  on  any  property  of  the  de- 
fendant, the  cause  proceeds  against  such  defendant,  iu  aU  respects,  as  if  originally 
commenced  by  attachment. 

§  4209. — Xo  judicial  attachment  shall  issue  against  the  estate  of  any  person 
residing  without  the  limits  of  the  state,  unless  such  process  is  grounded  on  an 
original  attachment,  or  unless  the  leading  process  in  the  suit  has  been  executed  on 
the  person  of  the  defendant  when  within  the  state. 

MODE  OP  SUING  OUT  ATTACHMENT. 

§  4210, — In  order  to  obtain  an  attachment,  the  plaintiff,  his  agent  or  attorney, 
shall  make  oath  in  writing,  stating  the  nature  and  amount  of  the  debt  or  demand, 
and  that  it  is  a  just  claim;  and  also,  that  one  or  more  of  the  causes  enumerated  in 
section  4192  exists. 

§  4211. — It  is  no  objection  to  the  attachment  that  the  bill,  affidavit,  or  attach- 
ment states  in  the  alternative,  or  otherwise,  more  than  one  of  the  causes  for  which 
attachment  may  be  sued  out. 

§  4212. — The  officer  to  whom  application  is  made  shall,  before  granting  the  at- 
tachment, require  the  plaintiff,  his  agent,  or  attorney  to  execute  a  bond  in  double 
the  amoimt  claimed  to  be  due,  with,  sufficient  security,  payable  to  the  defendant, 
and  conditioned  that  the  plaintiff  will  prosecute  the  attachment  with  effect,  or,  in 
case  of  failure,  pay  the  defendant  all  costs  that  may  be  adjudged  against  him,  and 
also  all  such  damages  as  he  may  sustain  by  the  wrongful  suing  out  of  the  attach- 
ment. 

§  421.3. — The  affidavit  and  bond  shall  be  filed  by  the  officer  taking  them,  in  the 
com-t  to  which  the  attachment  is  returnable,  and  shall  constitute  a  part  of  the 
record  in  the  cause. 


TENNESSEE.  683 

§  4214.— The  writ  shall  be  addressed  to  the  sheriff  of  the  county,  unless  the  suit 
be  before  a  justice  of  the  peace,  and  then  it  may  be  addressed  to  a  constable;  and  it 
shall  command  him  to  attach  and  safely  keep,  repleviable  upon  security,  the  estate 
of  the  defendant,  wherever  the  same  may  be  found  in  the  county,  or  in  the  hands 
of  any  person  indebted  to  or  having-  any  of  the  effects  of  the  defendant,  or  so  m\ich 
thereof  as  shall  be  of  value  sufficient  to  satisfy  the  debt  or  demand,  and  the  costs 
of  the  complaint. 

§  4215. — It  may  be  substantially  in  the  following  form: 

State  of  Tennessee, county. 

To  the  sheriff  of  county,  greeting:    Whereas,  A.  B.   [or  CD.,  as  the 

agent  or  attorney  of  A.  B.]  hath  complained  on  oath  to  me,  E.  F.,  judge  [chan- 
cellor, justice  of  the  peace,  or  clerk],  that  G.  H.  is  justly  indebted  [or  liable]  to 

the  said  A.  B.  in  the  sum  of  dollars;  and  affidavit  having  also  been  made 

in  wTiting,  and  bond  given  as  required  by  law  in  attachment  cases,  you  are  hereby 
commanded  to  attach  so  much  of  the  estate  of  the  said  G.  H.as  -will  be  of  value 
suffii-ieiit  to  satisfy  the  debt  and  costs  according  to  the  complaint;  and  such  estate, 
unless  reple\ied,  so  to  secure  that  the  same  may  be  liable  to  ftu-ther  proceedings 

thereon  to  be  held  at  the court,  to  be  held  for  the  county  of ,  on  the 

day  of next  [or  before  a  justice  of  the  peace  of county,  on  the 

day  of ],  when  and  where  you  will  make  known  how  you  have  exe- 
cuted this  writ. 

Witness,  E.  F.,  judge  of  the court  [chancellor,  justice  of  the  peace,  or 

clerk],  this day  of ,  18 — .  E.  F. 

§4216. — No  objection  will  lie  to  the  form  of  the  attachment,  if  the  essential 
matters  in  the  foregoing  precedent  be  set  forth  in  such  attachment. 

§  4217. — Attachments  issued  without  affidavit  and  bond,  as  herein  prescribed, 
may  be  abated  by  jplea  of  the  defendant. 

§  4218. — The  attachment  law  shall  be  liberally  construed,  and  the  plaintiff, 
before  or  during  trial,  shall  be  permitted  to  amend  any  defect  of  form  in  the_ affi- 
davit, bond,  attachment,  or  other  proceeding;  and  no  attachment  shall  be  dismissed 
for  any  defect  in,  or  want  of  bond,  if  the  plaintiff,  his  agent  or  attorney,  will  sub- 
stitute a  sufficient  bond. 

ATTACHMENT  BY  GAKNISHMENT. 

§  4219. — When  property,  choses  in  action,  or  effects  of  the  debtor  are  in  the 
hands  of  third  persons,  or  third  persons  are  indebted  to  such  debtor,  the  attachment 
may  be  by  garnishment. 

§  4220. — Attachment  by  garnishment  is  effected  by  informing  the  debtor  of  the 
defendant,  or  person  holding  the  property  of  the  defendant,  that  the  i^roperty  in 
his  hands  is  attached,  and  by  leaving  with  him  a  written  notice  that  he  is  required 
to  appear  at  the  return  term  of  the  attachment,  or  before  a  justice  of  the  peace  at 
a  time  and  place  fixed,  to  answer  such  questions  as  may  be  asked  him  touching  the 
property  and  effects  of  the  defendant. 

§  4221.— The  notice  should  also  require  the  defendant  not  to  pay  any  debt  due 
by  him,  or  thereafter  to  become  due,  and  to  retain  possession  of  all  property  of  the 
defendant,  then  or  thereafter  in  his  custody  or  mider  his  control,  to  answer  the 
garnishment. 

§  4222. — A  copy  of  the  notice  served  upon  the  garnishee  should  be  returned  by 
the  officer,  -with,  the  attachment  and  levy,  duly  executed. 

§  4223. — The  garnishee  shall  be  examined  as  prescribed  in  sections  3801,  3802. 

§  4224. — A  garnishee  may,  at  any  time  after  answer,  exonerate  himself  from 
further  responsibility,  by  paying  over  and  delivering  to  the  officer  before,  or  court 
after,  the  return  of  the  attachment,  the  money  or  property  of  the  defendant,  or  so 
much  thereof  as  may  be  equal  to  the  property  directed  to  be  attached;  and  such 
property  or  money  delivered  or  paid  over,  may  afterward  be  treated  as  though  at- 
tached in  the  usual  manner. 

§4225. — If  it  appears  that  the  garnishee  is  indebted  to  the  defendant,  or  has 
property  and  effects  of  the  defendant,  subject  to  the  attachment,  the  court  may,  in 
case  recovery  is  had  by  the  plaintiff  against  the  defendant,  give  judgment  against 
the  garnishee  for  the  amount  of  the  recovery,  or  of  the  indebtedness  and  property. 

§  4226. — If  the  debt  of  the  garnishee  to  the  defendant  is  not  due,  execution  mU 
be  suspended  until  its  maturity. 

§  4227. — If,  when  duly  summoned,  the  garnishee  fail  to  appear  and  answer  the 
garnishment,  he  shall  be  presumed  to  be  indebted  to  the  defendant  to  the  full 


684  TENNESSEE. 

amount  of  the  plaintiff's  demand,  and  a  conditional  judgment  stall  be  entered  up 
against  him  accordingly. 

§4228. — Upon  this  conditional  judgment  a  scire  facias  shall  issue  to  the  gar- 
nishee, returnable  to  the  next  term  of  the  court,  or  to  a  day  and  place  fixed  before 
a  justice,  to  show  cause  why  final  judgment  should  not  be  entered  against  him. 

§  4229.— Upon  the  return  of  this  scire  facias  duly  served,  or  two  returns  of  "  Not 
to  be  found  in  nay  county,"  the  conditional  judgment  will  be  made  final,  and  exe- 
cution isdued  aooordingly. 

§  4230.  — If,  upon  the  examination  of  any  garnishee,  it  appears  that  there  is  any 
of  the  defendant's  estate  in  the  hands  or  under  the  control  of  any  person  not  sum- 
moned, the  court  or  justice  shall,  upon  the  motion  of  the  plaintiff,  grant  attach- 
ment, to  be  levied  on  the  estate  in  the  hands  or  under  the  control  of  such  person, 
•who  shall  be  siunmoned  and  made  liable  as  other  garnishees. 

§  4231. — The  garnishee  is  allowed  the  pay  and  privileges  of  a  witness,  for  his 
attendance  and  answer,  and  all  costs  to  be  paid  hy  the  plaintiff,  subject  to  the 
provisions  of  section  3815. 

§  4232. — If  the  garnishee  die  after  he  has  been  summoned  in  garnishment  and 
pending  the  litigation,  the  proceedings  may  be  revived  by  or  against  his  heirs  or 
legal  representatives. 

§  4233. — An  appeal  lies  in  all  garnishment  cases,  at  the  instance  of  the  plaintiff, 
the  defendant,  or  the  garnishee. 

§4234. — The  judgment  in  the  garnishment  suit,  condemning  the  property  or 
debt  in  the  hands  of  the  garnishee  to  the  satisfaction  of  the  plaintiff's  demand,  ia 
conclusive  as  between  the  garnishee  and  defendant. 

§  423.5. — The  garnishee  against  whom  a  judgment  for  money  is  rendered  by  a 
justice  of  the  peace,  is  entitled  to  the  stay  of  execution  allowed  by  law  on  justice's 
judgments. 

§4236. — The  garnishee  shall  not  be  made  liable  upon  a  debt  due  by  negotiable 
or  assignable  paper,  unless  such  paper  is  delivered,  or  the  garnishee  completely 
exonerated  or  indemnified  from  all  liability  thereon,  after  he  may  have  satisfied 
the  judgment  or  decree. 

LEVY  OF  ATTACHMENT. 

§4237. — Constables  may  execute  attachments  returnable  before  justices  of  the 
peace,  and  in  cases  where  the  defendant  is  about  to  abscond  or  remove.  The  pro- 
visions of  this  chapter  in  relation  to  the  duties  of  attaching  officers,  embrace  con- 
stables whenever  they  are  authorized  to  serve  attachments. 

§  4238.  — The  writ  of  attachment  should  direct  so  much  of  the  property  of  the 
defendant  to  be  attached  as  will  be  sufficient  to  satisfy  the  plaintiff's  debt,  or  de- 
mand, and  all  costs. 

§  4239. — The  officer  to  whom  the  writ  is  delivered  shall  attach  and  take  into 
his  possession,  in  the  first  instance,  so  much  of  the  personal  property  of  the  de- 
fendant as  may  be  necessary  to  meet  the  exigency  of  the  writ,  and  shall  levy  the 
attachment,  when  necessary,  upon  the  defendant's  real  estate. 

§  4240. — If  the  officer  make  an  excessive  levy,  he  shall  be  liable  as  in  case  of  ex- 
cessive levy  by  execution. 

§  4241. — Attachments  may  be  levied  upon  any  real  or  personal  property  of  either 
a  legal  or  equitable  nature,  debts  or  choses  in  action,  whether  due  or  not  due,  in 
which  the  defendant  has  an  interest. 

§  4242. — If  debts  or  choses  in  action  not  due  are  levied  upon,  no  final  judgment 
or  decree  shall  be  rendered  until  they  become  payable. 

§  4243. — In  all  cases  where  choses  in  action  are  attached,  the  officer  levying  the 
attachment  may  collect  the  same  until  the  writ  is  returned,  imless  otherwise  or- 
dered. 

§  4244. — The  court  of  justice  before  whom  the  suit  is  pending,  may,  at  any  time, 
appoint  a  receiver  to  take  possession  of  the  property  attached  under  the  provisions 
of  this  chapter,  and  to  collect,  manage,  and  control  the  same,  and  pay  over  the 
proceeds  according  to  the  nature  of  the  property  and  exigency  of  the  case. 

§  4245. — Perishable  property  may  be  sold  by  order  of  the  court  or  justice  before 
■whom  the  sidt  is  pending,  unless  replevied  by  the  defendant. 


TENNESSEE.  685 

§  42-16.  — If  any  or  all  of  the  property  is  of  so  peristable  a  nature,  or  so  expensive, 
as  to  render  a  sale  necessary  for  the  interest  of  the  parties,  before  the  officer  can 
make  his  return,  lie  may  sell  the  same,  upon  advertisement  as  in  the  case  of  exe- 
cution sales,  and  make  return  of  the  facts  with  the  proceeds  of  sale. 

§  4247. — I\Ioney  attached  liythe  officer,  or  coming  to  his  hands  by  virtue  of  the 
attachment,  shall  fortliwith  lie  paid  over  to  the  clerk  of  the  court  in  which  the  suit 
is  pending,  to  ha  by  him  retained  until  the  further  action  of  the  court. 

§  4248.  —Any  transfer,  sale  or  assignment,  made  after  the  filing  of  an  attach- 
mentbill  in  chancery,  or  after  the  suing  out  of  an  attachment  at  law,  of  jiroperty 
mentioned  in  the  bill  of  attachment,  as  against  the  plaintiff,  shall  be  inoperative 
and  void. 

§  4249.— If  after  the  service  upon  him  of  copy  of  the  bill,  or  levy  of  the  attach- 
ment at  law  upon  debts  or  effects  in  his  hands,  any  person  should  jiay  the  debt  or 
secrete  the  effects,  or  purchase  in  any  other  claim  against  the  defendant,  he  shall 
be  liable  to  the  same  extent  as  before  the  payment,  secreting  or  purchase. 

REPLEVY   OF   PROPERTY  ATTACHED. 

§  4250. — The  defendant  to  an  attachmentsuit  may  always  replevy  the  property 
attached  by  giving  bond,  with  good  security,  payable  to  the  plaintiff,  in  double  the 
amount  of  the  plaintiff's  demand,  or  at  defendant's  option,  in  double  the  value  of 
the  property  attached,  conditioned  to  pay  the  debt,  interest,  and  costs,  or  the  value 
of  the  property  attached,  with  interest,  as  the  case  may  be,  in  the  event  he  shall 
be  cast  in  the  suit. 

§  4251.— The  officer  le-^ying  the  attachment  shall  take  the  bond,  if  tendered,  at 
any  time  before  he  has  made  sale  of  the  property,  or  return  of  the  process,  in  which 
case  he  will  fix  the  value  of  the  property,  and  judge  of  the  sufficiency  of  the 
security. 

§  4252. — After  the  return  of  the  attachment,  and  at  any  time  before  sale  of  the 
property  attached,  the  justice  to  whom  the  writ  is  returned,  or  the  clerk  of  the 
court  to  which  return  is  made,  shall  take  the  replevy  bond  and  fix  the  value  of 
the  property,  and  judge  of  the  sufficiency  of  the  security. 

§  4253. — Replevy  bonds  are  subject  to  the  rules  prescribed  in  sections  9G1-2. 

§  4254. — The  bond,  if  given  to  the  officer  levying  the  attachment,  shall  be  re- 
turned by  him  with  the  attachment;  and,  whether  given  to  such  officer,  to  the  clerk 
or  justice,  it  constitutes  a  part  of  the  record. 

§  42.55. — The  court  may  enter  up  judgment  or  decree  upon  the  bond,  in  the 
event  of  recovery  by  the  plaintiff,  against  the  defendant  and  his  sm-eties  for  the 
penalty  of  the  bond,  to  be  satisfied  by  delivery  of  the  i^roperty  or  its  value,  or 
payment  of  the  recovery,  as  the  case  may  be. 

§  4256. — The  death  or  destruction  of  the  property,  without  any  fault  of  the 
defendant,  after  the  replevy,  is  no  defense  to  the  liability  on  such  bond. 

MODE   OF  PROCEDURE  IN  ATTACHMENT  CASES. 

§  4257.  — The  aflidavit  and  bond  shall  be  returned  by  the  officer  granting  the 
attachment  to  the  tribunal  to  which  the  attachment  is  made  returnable. 

§  4258. — Alias  writs  of  attachment,  or  new  writs  of  garnishment,  may  issue 
without  new  bond  or  affidavit,  when  no  property  has  been  found,  or  not  sufficient 
to  satisfy  the  debt,  or  when,  pending  the  suit,  the  plaintiff  wishes  to  garnishee 
other  persons. 

§  4259. — The  officer  granting  the  attachment  may,  at  the  time,  direct  that  as 
soon  as  the  attachment  is  levied  publication  be  made  in  some  newspaper,  requiring 
the  defendant  to  appear  at  a  time  and  place  to  be  mentioned  in  such  publication, 
before  the  court  or  justice  having  cognizance  of  the  attachment,  and  defend  the 
action  thus  commenced,  otherwise  the  cause  may  be  proceeded  with  ex  parte. 

§  4260. — If  the  order  of  publication  is  not  then  made,  the  clerk  of  the  court, 
the  court  itself,  or  the  justice  before  whom  the  attachment  is  returned,  may  make 
such  order  at  any  time  thereafter. 

§  4261. — The  order  .-hould  be  entered  upon  the  justice's  docket,  as  well  as  in- 
dorsed upon  the  paperd  in  all  attachment  cases  retiu-ned  before  a  magistrate.  In 
all  other  cases,  the  entry  should  be  upon  the  minutes  or  rule-docket  of  the  court. 

§  4262. — As  soon  as  the  attachment  is  levied  upon  property  of  the  defendant, 
the  justice,  or  clerk  of  the  court,  shall  make  out,  in  ptirsuance  of  the  order  of 


686  TENNESSEE. 

publication,  a  memorandum  or  notice  thereof,  and  cause  the  same  to  be  published 
forthwith  in  some  convenient  newspaper  according  to  law. 

§  4263. — This  memorandimi  or  notice  shall  contain  the  names  of  the  parties,  the 
style  of  the  court  to  which  the  attachment  is  made  returnable,  the  cause  alleged 
for  suing  it  out,  and  the  time  and  place  at  which  the  defendant  is  required  to  appear 
and  defend  the  attachment  suit. 

§  4264. — The  publication  shall  be  made  for  four  consecutive  weeks  in  a  news- 
paper piiblished  in  the  county  in  which  the  suit  is  brought,  if  any,  and  if  not,  in 
some  convenient  newspaper  to  be  designated  in  the  order,  the  last  publication  to 
be  at  least  one  week  before  the  time  fixed  for  the  defendant's  appearance. 

§  4265. — The  attachment  and  publication  are  in  lieu  of  personal  service  upon 
the  defendant,  and  the  plaintiff  may  proceed,  upon  return  of  the  attachment  duly 
levied,  as  if  the  suit  had  been  commenced  by  summons. 

§  4266. — If  the  debt  or  demand  on  which  the  attachment  suit  is  brought,  is  not 
d,ue  at  the  time  of  the  service  of  the  attachment,  the  i^laintiEE  is  not  required  to  file 
any  pleadings  until  the  maturity  of  such  debt  or  demand. 

§  4267. — Should  the  defendant  appear  in  time,  he  may  make  defense,  and  the 
cause  proceed  as  if  the  suit  had  been  commenced  by  personal  service  of  process.  If 
he  fail  to  appear,  or  make  defense,  the  plaintiff  may  take  judgment  at  law,  or  ob- 
tain a  decree  in  equity,  in  like  manner  as  if  the  defendant  had  faded  to  appear 
and  defend  upon  personal  service  of  process. 

§4268. — Where  the  defendant  does  not  appear,  the  comH;  may,  and  a  justice 
shall,  stay  final  judgment  or  decree,  not  exceeding  twelve  nor  less  than  six  months 
from  the  time  of  the  return. 

§  4269. — WTiere  the  attachment  is  sued  out  because  the  defendant  is  a  non- 
resident, the  stay  shall  be  allowed  unless  sufficient  cause  appear  to  the  contrary. 

§  4270. — In  all  cases  of  attachment  sued  out  because  the  defendant  resides  out 
of  the  state,  or  has  merely  removed  himself  or  property  from  the  state,  the  judg- 
ment or  decree  by  default  may  be  set  aside,  upon  application  of  the  defendant  and 
good  cause  shown,  within  twelve  months  thereafter,  and  defense  permitted  upon 
such  terms  as  the  court  of  justice  may  impose. 

§  4271.— In  all  other  cases  of  judgment  or  decree  by  default,  the  defendant  can- 
not deny  or  put  in  issue  the  ground  upon  which  the  attachment  was  issued,  but 
may  at  any  time  thereafter,  and  within  one  year  after  the  smng  out  of  the  attach- 
ment, commence  an  action  on  the  attachment  bond,  and  may  recover  such  damages 
as  he  has  actually  sustained  for  wrongfully  siung  out  the  attachment. 

§  4272. — If  sued  out  maliciously,  as  well  as  wrongfully,  the  jury  may,  on  the 
trial  of  such  action,  give  vindictive  damages. 

§  4273. — Persons  laboring  under  the  disabilities  of  coverture,  infancy,  or  un- 
soundness of  mind  at  the  rendition  of  the  judgment  or  decree  by  default,  have  six 
months  after  the  removal  of  such  disability,  to  appear  and  show  cause  against  such 
judgment  or  decree. 

§  4274. — The  death  of  the  defendant  proceeded  against  by  attachment,  without 
personal  service,  whether  the  death  occurred  before  or  after  the  commencement  of 
the  action,  does  not  render  the  proceedings  void,  but  his  heirs  or  representatives,  aa 
the  case  may  be,  have  the  right,  within  three  years  from  the  rendition  of  final 
judgment  or  decree,  to  make  themselves  parties  by  petition  showing  merits  verified 
by  affidavit,  and  contest  the  plaintiff's  demand. 

§  4275. — The  judgment  or  decree,  if  executed  before  it  is  set  aside,  under  any  of 
the  foregoing  provisions,  will  be  a  protection  to  all  persons  acting  under  it,  and 
will  confer  a  good  title  to  all  property  sold  by  virtue  thereof. 

§  4276. — If  the  property  attached  has  been  replevied  by  the  defendant,  the 
justice  or  court,  upon  recovery  by  the  plaintiff,  is  authorized  to  render  judgment 
against  the  defendant  and  his  sureties  in  the  reple^"y  bond,  for  the  penalty  of  such 
bond,  but  to  be  satisfied  by  the  payment  of  the  value  of  the  propertj',  with  interest 
from  the  date  of  the  bond,  or  by  the  payment  of  the  plaintiff's  demand  as  ascer- 
tained, with  interest  and  costs,  or  by  the  forthcoming  of  tht,  property,  as  the  case 
may  be. 

§  4277. — The  property  attached,  if  not  replevied,  with  its  proceeds  or  increase 
from  the  date  of  levy,  will  be  subjected  to  the  satisfaction  of  the  judgment  or  de- 
cree by  sale  ui^on  such  terms  and  conditions  as  may,  in  the  discretion  of  the  court, 


TEXAS.  687 

be  deemed  most  for  the  interest  of  all  parties,  by  order  of  sale,  or  by  other  process 

necessary  to  effect  the  object. 

§  4278. — In  all  attachment  cases  returnable  before- a  justice  of  the  peace,  when 
land  has  been  levied  upon,  either  by  the  attachment  or  by  execution  under  the 
judgment,  and  it  is  necessary  to  sell  the  land  to  satisfy  the  judgment,  the  papers 
shall  be  returned  to  the  circuit  court,  and  the  land  condemned,  as  in  other  cases  of 
levy  upon  land  by  justice's  execution. 

§  4270. — When  the  property  attached  is  not  sufficient  to  satisfy  the  recovery, 
execution,  may  issue  for  the  residue  as  in  other  cases. 


Justices  of  the  peace— Sees.  4900,  4948-4950. 

Jvidges  and  chancellors  may  grant — Sees.  4714,  5179;  .or  order  attached  prop- 
erty to  be  delivered  to  party  entitled,  sec.  5199. 

By  surety  on  replevin  bond—  Sec.  4418. 

Liens  enforced  by — Journeymen,  sees.  2746,  2747;  ships,  sees.  2751,  2752,  and 
4293-4305;  wharfage,  sec.  2753;  pasturage,  sees.  275G-2759;  cotton-sellers,  sees.  2761, 
2762;  employees  corporations,  sees.  2708-2770;  farm  laborers,  sees.  2771-2773;  crops, 
sees.  4280-4282;  furnishers  of  goods,  sees.  4284,  4285;  mechanics,  sees.  4286,  4290, 
4291. 

Exemptions — Policies  of  insurance,  sec.  1813;  personalty,  sees.  2931-2934;  home- 
.Btead,  sees.  2935-2939;  widows,  sees.  3125,  3126. 


TEXAS. 

[Reh/ised  Statutes,  1879.] 


TITLE  IX.— CHAPTER  ONE. 

OBIGINAL  ATTACHMENT. 

Ahticle  152. — The  judges  and  clerks  of  the  district  and  county  courts,  and  jus- 
tices of  the  peace,  may  issue  writs  of  original  attachment,  returnable  to  their  re- 
spective courts,  upon  the  plaintiff,  his  agent  or  attorney,  making  an  affidavit  in 
writing,  stating — 

1.  That  the  defendant  is  justly  indebted  to  the  plaintiff,  and  the  amount  of  the 
demand;  and, 

2.  That  the  defendant  is  not  a  resident  of  the  state,  or  is  a  foreign  corporation 
or  is  acting  as  such;  or, 

3.  That  he  is  about  to  remove  permanently  out  of  the  state,  and  has  refused  to 
pay  or  secure  the  debt  due  the  plaintiff;  or, 

4.  That  he  secretes  himseif  so  that  the  ordinary  process  of  law  cannot  be  served 
on  him;  or, 

5.  That  he  has  secreted  his  property  for  the  purpose  of  defrauding  his  cred- 
itors; or, 

6.  That  he  is  about  to  secrete  his  property  for  the  purpose  of  defrauding  his 
creditors;  or, 

7.  That  he  is  about  to  remove  his  property  out  of  the  state,  without  leaving 
sufficient  remaining  for  the  payment  of  his  debts;  or, 

8.  That  he  is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  county 
where  the  suit  is  brought,  with  intent  to  defraud  his  creditors;  or, 

9.  That  he  has  disposed  of  his  property,  in  whole  or  in  part,  with  intent  to  de- 
fraud his  creditors;  or, 

10.  That  he  is  about  to  dispose  of  his  property  with  intent  to  defraud  his  cred- 
itors; or, 

11.  That  he  is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for 
the  purpose  of  ijlacing  it  beyond  the  reach  of  his  creditors;  or, 

12.  That  the  debt  is  due  for  j)roperty  obtained  under  false  pretenses. 


688  TEXAS. 

Art.  153. — The  affidavit  shall  further  state — 

1.  That  the  attachment  is  not  sued  out  for  the  purpose  of  injuring'  or  harassing 
the  defendant;  and, 

2.  That  the  plaintiff  will  probably  lose  his  debt  unless  such  attachment  is 
issued. 

Art.  154. — No  such  attachment  shall  issue  until  the  suit  has  been  duly  insti- 
tuted, but  it  may  be  issued  in  a  proper  case  either  at  the  commencement  of  the 
suit  or  at  any  time  during  its  progress. 

Art.  155.— The  writ  of  attachment  above  provided  for  may  issue,  although  the 
plaintiff's  debt  or  demand  be  not  due,  and  the  same  proceedings  shall  be  had  thereon 
as  in  other  cases,  except  that  no  final  judgment  shall  be  rendered  against  the  de- 
fendant until  such  debt  or  demand  shall  become  due. 

Art.  156. — Before  the  issuance  of  any  writ  of  attachment  the  plaintiff  must 
execute  a  bond,  with  two  or  more  good  and  sufficient  sureties,  payable  to  the  de- 
fendant, in  a  sum  not  less  than  double  the  debt  sworn  to  be  due,  conditioned  that 
the  plaintiff  wiU  prosecute  his  suit  to  effect,  and  will  pay  all  such  damages  and 
costs  as  shall  be  adjudged  against  him  for  ^vrongfuIly  suing  out  such  attachment. 

Art.  157. — Such  bond  shall  be  delivered  to  and  approved  by  the  officer  is- 
suing the  writ,  and  shall,  together  with  the  affidavit,  be  filed  with  the  papers  of 
the  cause. 

Art.  158. — The  following  form  of  bond  may  be  used: 

The  state  of  Texas,  county  of , 

We,  the  undersigned,  A.  B. as  principal,  and ^and as  sure- 
ties, acknowledge  ourselves  bound  to  pay  to  C.  D.  the  sum  of  dollars,  con- 
ditioned that  the  above  bound  A.  B. ,  plaintiff  in  attachment  against  the  said  C 
D. ,  defendant,  will  prosecute  his  said  suit  to  effect,  and  that  be  will  pay  all  such 
damages  and  costs  as  shall  be  adjudged  against  him  for  wrongfully  suing  out  such 
attachment.     Witness  our  hands  this day  of ,  18 — .  A.  B. 

E.  F. 

G.  H. 

Art.  159. — Every  original  attachment  issued  without  affidavit  and  bond  as 
herein  provided,  shall  be  abated  on  motion  of  the  defendant;  but  such  affida'idt 
and  bond  shall  not  be  void  for  want  of  form,  provided  they  contain  all  essential 
matters. 

Art.  160. — Upon  the  execution  of  such  affidavit  and  bond,  it  shall  be  the  duty 
of  the  judge  or  clerk,  or  justice  of  the  peace,  as  the  case  may  be,  immediately  to 
issue  a  ^vrit  of  attachment,  directed  to  the  sheriff  or  any  constable  of  any  county 
where  property  of  the  defendant  may  be  supposed  to  be,  commanding  him  to  at- 
tach so  much  of  the  property  of  the  defendant  as  shall  be  sufficient  to  satisfy  the 
demand  of  the  plaintiff  and  the  probable  costs  of  the  suit. 

Art.  161. — Several  writs  of  attachment  may,  at  the  option  of  the  plaintiff,  be 
issued  at  the  same  time,  or  in  succession,  and  sent  to  different  counties,  until  suffi- 
cient property  shall  be  attached  to  satisfy  the  writ. 

Art.  162. — The  following  form  of  writ  may  be  issued: 
The  state  op  Texas, 

To  the  sheriff  or  any  constable  of  county,  greeting:     We  command  you 

that  you  attach  forthwith  so  much  of  the  jjroperty  of  C.  D. ,  if  to  be  found  in  your 
county,  reple\aable  on  security,  as  shall  be  of  value  sufficient  to  make  the  simi  of 

dollars,  and  the  probable  costs  of  suit,  to  satisfy  the  demand  of  A.  B. ,  and 

that  you  keep  and  secure  in  your  hands  the  property  so  attached,  unless  replevied, 
that  the  same  may  be  liable  to  further  proceedings  thereon,  to  be  had  before  our 

court  in ,  in  the  county  of  ,  on  the day  of  ,  18 — ,  when 

and  where  you  shall  make  known  how  you  have  executed  this  writ. 

Art.  16.3. — The  writ  of  attachment  shall  be  dated  and  tested  as  other  writs, 
and  may  be  delivered  to  the  sheriff  or  constable  by  the  officer  issuing  it,  or  he  may 
deliver  it  to  the  plaintiff,  his  agent  or  attorney,  for  that  purpose. 

Art.  164. — The  sheriff  or  constable  receiving  the  writ  shall  immediately  proceed 
to  execute  the  same  by  le\'ying  iipon  so  much  of  the  property  of  the  defendant  sub- 
ject to  the  writ,  and  found  within  his  county,  as  may  be  sufficient  to  satisfy  the 
cornmand  of  the  writ. 

Art.  165. — Whenever  an  officer  shall  levy  an  attachment  it  shall  be  at  his  own 
risk;  and  such  officer  may,  for  his  own  indemnification,  require  the  plaintiff  in  at- 


TEXAS.  689 

tacliment  to  execute  and  deliver  to  him  a  bond  of  indemnity  to  secure  him,  if  it 
shdiild  afterward  appear  that  the  property  levied  upon  by  him  does  not  belong  to 
the  defendant. 

Art.  166. — The  writ  of  attachment  may  be  levied  on  such  property,  and  none 
other,  as  is  or  may  be  by  law  subject  to  levy  under  the  writ  of  execution. 

Art.  167. — The  writ  of  attachment  shall  be  levied  in  the  same  manner  as  is  or 
may  be  the  writ  of  e.xecution  upon  similar  property. 

Art.  168.  — "When  personal  property  is  attached,  the  same  shall  remain  in  the 
hands  of  the  officer  attaching  until  fiual  judgment,  unless  a  claim  be  made  thereto 
and  bond  be  given  to  try  the  right  to  the  same,  or  unless  the  same  be  replevied  or 
be  sold  as  provided  by  law. 

Art.  169. — Any  person  other  than  the  defendant  may  claim  the  personal  prop- 
erty so  levied  on,  or  any  part  thereof,  upon  making  the  affidavit  and  giving  the 
bond  reqidred  by  the  provisions  of  the  title  relating  to  the  trial  of  the  right  of 
property. 

Art.  170. — At  any  time  before  judgment,  should  the  property  not  have  been 
previously  claimed  or  sold,  as  provided  in  this  chapter,  the  defendant  may  replevy 
the  same,  or  anj''  part  thereof,  Ijy  giving  bond,  with  two  or  more  good  and  sufficient 
sureties,  to  be  approved  by  the  officer  who  levied  the  writ,  payable  to  the  plaintiff, 
in  double  the  amount  of  the  plaintiff's  debt,  or,  at  the  defendant's  option,  for  the 
'  value  of  the  property  replevied,  to  be  estimated  by  the  officer,  conditioned  that 
should  the  defendant  be  condemned  in  the  action  he  shall  satisfy  the  judgment 
which  may  be  rendered  therein,  or  shall  pay  the  estimated  value  of  the  property, 
with  lawful  interest  thereon,  from  the  date  of  the  bond. 

Art.  171. — Whenever  personal  property  which  has  been  attached  shall  not  have 
been  claimed  or  reple^'ied  as  above  provided,  the  judge  or  justice  of  the  peace  out 
of  whose  court  the  writ  was  issued  may,  either  in  term-time  or  in  vacation,  order 
the  same  to  be  sold,  when  it  shall  be  made  to  appear  that  such  property  is  in  dan- 
ger of  serious  and  immediate  waste  or  decay,  or  tliat  the  keeping  of  the  same  until 
the  trial  will  necessarily  be  attended  with  such  expense  or  deterioration  in  value  as 
greatly  to  lessen  the  amount  likely  to  be  realized  therefrom. 

Art.  172. — In  ascertaining  the  facts  which  authorize  the  making  of  such  order 
of  sale  under  the  preceding  article,  the  judge  or  justice  of  the  peace,  as  the  case 
may  be,  may  require  or  dispense  with  notice  to  the  parties,  and  may  act  upon  such 
information,  by  affidavit,  certificate  of  the  attaching  officer,  or  other  proof,  as  may 
seem  to  him  necessary  to  protect  the  interest  of  the  loarties. 

Art.  173. — Such  sale  shall  be  conducted  in  the  same  manner  as  sales  of  per- 
sonal proi^erty  under  execution,  except  as  to  the  time  of  advertisement,  which  may 
be  fixed  by  the  judge  or  the  justice  for  a  shorter  period,  according  to  the  exigency 
of  the  case. 

Art.  174. — The  proceeds  of  such  sale  shall,  within  five  days  thereafter,  be  paid 
over  by  the  officer  making  the  sale  to  the  clerk  of  the  court  or  justice  of  the  peace, 
as  the  case  may  be,  accompanied  by  a  statement  in  writing,  signed  by  such  officer 
officially,  to  be  filed  with  the  papers,  stating  the  time  and  place  of  the  sale,  the 
name  of  the  purchaser,  and  the  amount  received,  with  an  itemized  account  of  the 
expenses  attending  the  sale. 

Art.  175. — If  the  personal  property  be  not  replevied  or  claimed  or  sold  under 
the  several  provisions  of  this  chapter,  the  judge  or  justice  of  the  peace,  as  the  case 
may  be,  may,  either  in  term-time  or  in  vacation,  make  such  order  for  the  i^reser- 
vation  or  use  of  the  same  as  shall  appear  to  be  to  the  interest  of  the  parties. 

Art.  176.— The  officer  executing  the  writ  of  attachment  shall  return  the  writ, 
with  his  action  indorsed  thereon  or  attached  thereto,  signed  by  him  officially,  to- 
the  court  from  which  it  issued,  on  or  before  the  first  day  of  the  next  term  thereof. 

Art.  177. — Such  return  shall  describe  the  property  attached  with  sufficient  cer- 
tainty to  identify  it,  and  shall  state  when  the  same  was  attached,  and  whether  any 
personal  property  attached  remains  still  in  his  hands,  and  if  not,  the  disposition 
made  of  the  same;  and  when  personal  property  has  been  replevied  he  shall  de- 
liver the  replevy  bond  to  the  clerk,  to  be  filed  with  the  papers  of  the  cause. 

Art.  178. — When  the  j^roperty  levied  on  is  claimed,  replevied,  or  sold,  or  other- 
wise disposed  of,  after  the  writ  has  been  returned,  the  officer  having  the  custody  of 
the  same  shall  immediately  make  a  report  in  wiiting,  signed  by  him  officially,  to 
the  clerk  or  justice  of  the  peace,  as  the  case  may  be,  showing  such  disposition  of 
the  property;  and  such  report  shall  be  filed  among  the  papers  of  the  cause. 

II  AlIACUilEXI— 19. 


690  TEXAS. 

Art.  179. — The  execution  of  the  writ  of  attachment  upon  any  property  of 
the  defendant  subject  thereto,  unless  the  writ  should  be  quashed  or  otherwise 
vaeated,  shall  create  a  lien  from  the  date  of  such  levy  on  the  real  estarte 
levied  on  and  on  such  personal  property  as  remains  in  the  hands  of  the  attaching 
officer,  and  on  the  i^roceeds  of  such  personal  property  as  may  have  been  sold. 

Art.  180. — Should  the  plaintiff  recover  in  the  suit,  such  attachment  lien,  shall 
be  foreclosed  as  in  case  of  other  liens,  and  the  court  shall  direct  the  proceeds  of  the 
personal  property  sold  to  be  applied  to  the  satisfaction  of  the  judgment,  and  the 
sale  of  personal  property  remaining  in  the  hands  of  the  officer  and  of  the  real  es- 
tate levied  on,  to  satisfy  the  judgment. 

Art.  181. — '\Vhen  personal  property  has  been  levied  on  as  hereinbefore  pro- 
\'ided,  the  judgment  shaU.  also  be  against  the  defendant  and  his  sureties  on  his 
replevj-  bond  for  the  amount  of  the  judgment,  interest  and  costs,  or  for  the  value 
of  the  property  replevied  and  interest,  according  to  the  terms  of  such  replevy  bond. 

Art.  182. — Should  the  attachment  be  quashed  or  otherwise  vacated,  or  should 
judgment  be  for  the  defendant,  the  court  shall  make  the  necessary  order  restoring 
the  property  to  the  defendant  or  discharging  the  claim  or  replevy  bond,  as  the  case 
mav  be. 


CHAPTER  TWO. 

GARNISHSTENT. 

Article  183. — The  clerks  of  the  district  and  county  courts  and  justices  of  the 
peace  may  issue  writs  of  gamishinent,  returnable  to  their  respective  coiirts,  in  the 
following  cases: 

1.  "WTiere  an  original  attachment  has  been  issued  as  provided  in  the  foregoing 
chapter. 

2.  Wliere  the  plaintiff  sues  for  a  debt  and  makes  affidavit  that  such  debt  is 
just,  due  and  unpaid,  and  that  the  defendant  has  not,  within  his  knowledge,  prop- 
erty in  his  possession,  ■within  this  state,  subject  to  execution,  sufficient  to  satMy 
such  debt;  and  that  the  garnishment  applied  for  is  not  sued  out  to  injure  either  the 
defendant  or  the  garnishee. 

3.  Where  the  plaintiff  has  a  judgment,  and  makes  affidavit  that  the  defendant 
Las  not,  within  his  knowledge,  property  in  his  possession  within  this  state,  subject 
to  execution,  sufficient  to  satisfy  such  judgment. 

Art.  184. — In  the  case  mentioned  in  subdivision  two  of  the  preceding  article, 
the  plaintiff  shall  execute  a  bond,  with  two  or  more  good  and  sufficient  sm-eties, 
to  be  approved  by  the  officer  issuing  the  writ,  payable  to  the  defendant  in  the 
suit,  in  double  the  amount  of  the  debt  claimed  therein,  conditioned  that  he  wiU 
prosecute  his  suit  to  effect  and  pay  all  damages  and  costs  that  may  be  adjudged 
against  him  for  wrongfully  suing  out  such  garnishment. 

Art.  185. — Before  the  issxiance  of  the  writ  of  garnishment  the  plaintiff  shall 
make  apf)lication  therefor  in  ■writing,  under  oath,  signed  by  him,  stating  the  facts 
authorizing  the  issuance  of  the  writ,  and  that  the  plaintiff  has  reason  to  believe, 
and  does  believe,  that  the  gai-nishee,  stating  his  name  and  residence,  is  indebted  to 
the  defendant,  or  that  he  has  in  his  hands  effects  belonging  to  the  defendant,  or 
that  the  garnishee  is  an  incorporated  or  joint-stock  company,  and  that  the  defend- 
ant is  the  o'wner  of  shares  in  such  company  or  has  an  interest  therein. 

Art.  186. — When  the  foregoing  requisites  have  been  complied  ■with,  the  judge,  ^ 
or  clerk,  or  justice  of  the  peace,  as  the  case  may  be,  shall  docket  the  case  in  the 
nane  of  the  plaintiff  as  plaintiff,  and  of  the  garnishee  as  defendant,  and  shall  im- 
mediately issue  a  writ  of  garnishment,  dnected  to  the  sheriff  or  any  constable  of 
the  countj'  where  the  garnishee  is  alleged  to  reside  or  be,  commanding  him  forth- 
with to  summon  the  garnishee  to  appear  before  the  court  out  of  which  the  same  is 
issued,  on  the  first  day  of  the  ensuing  term  thereof,  to  answer  upon  oath  what,  if 
anything,  he  is  indebted  to  the  defendant,  and  was  when  such  -writ  was  served, 
and  what  effects,  if  any,  of  the  defendant  he  has  in  his  possession,  and  had  when 
such  ■svTit  was  served,  and  what  other  persons,  if  any,  ■wiLnin  his  knowledge,  are 
indebted  to  the  defendant  or  have  effects  belonging  to  him  in  their  possession. 

Art.  187. — Where  it  appears  from  the  plaintiff's  affidavit  that  the  garnishee  is 
an  incorporated  or  joint-stock  company,  in  which  the  defendant  is  the  ovvner  of 
shares,  or  i.s  interested  therein,  the  ■writ  of  garnishment  shall  further  requii-e  the 
garnishee  to  answer  upon  oath  what  number  of  shares,  if  any,  the  defendant  owns 


•  TEXAS.  691 

in  such  company,  or  owned  when  such  writ  was  served,  and  what  interest,  if  any, 
he  has  in  such  company,  or  had  when  such  writ  was  served. 

Art.  188. — The  following  form  of  writ  may  be  used: 
The  state  of  Texas, 

To  the   sheriff  or  any  constable  of  county,  greeting:    Whereas,  in  the 

• court  of county  [if  a  justice's  court,  state  also  the  number  of  the  pre- 
cinct], in  a  certain  cause  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant,  the 
plaintiff,  claiming  an  indebtedness  against  the  said  C.  D.  of  dollars,  be- 
sides interest  and  costs  of  suit,  has  applied  for  a  writ  of  garnishment  against  E. 
r. ,  who  is  alleged  to  be  a  resident  of  your  county  [or  to  be  wdthin  your  county,  as 
the  case  may  be];  therefore  you  are  hereby  commanded  forthwith  to  summon  the 
said  E.  F. ,  if  to  be  found  wdthin  your  county,  to  be  and  appear  before  the  said 

court  at  the  next  term  thereof,  to  be  held  at ,  in  said  county,  on  the 

day  of  ,  18 — ,  then  and  there  to  answer  upon  oath  what,  if  anything,  he  is 

indebted  to  the  said  C  D. ,  and  was  when  this  writ  was  served  upon  him,  and  what 
effects,  if  any,  of  the  said  C.  D.  he  has  in  his  possession,  and  had  when  this  writ 
was  served,  and  what  other  persons,  if  any,  -svithin  his  knowledge,  are  indebted  to 
the  said  C.  D.,  or  have  effects  belonging  to  him  in  their  possession  [and  if  the  gar- 
nishee be  an  incorporated  or  joint-stock  company,  in  which  the  defendant  is  al- 
leged to  be  the  owner  of  shares  or  interested  therein,  then  the  writ  shall  proceed: 
and  further  to  answer  what  number  of  shares,  if  any,  the  said  C.  D.  owns  in  such 
company,  and  owned  when  such  writ  was  served].  Hereof  fail  not,  but  of  this 
writ  make  due  return  as  the  law  directs. 

Art.  189. — The  writ  of  garnishment  shall  be  dated  and  tested  as  other  writs, 
and  may  be  delivered  to  the  .sheriff  or  constable  by  the  officer  who  issued  it,  or  he 
may  deliver  it  to  the  plaintiff,  his  agent  or  attorney,  for  that  purpose. 

Art.  190. — The  sheriff  or  constable  receiving  the  writ  of  garnishment  shall  im- 
mediately proceed  to  execute  the  same  by  delivering  a  copy  thereof  to  the  gar- 
nishee, and  shall  make  retmn  thereof  as  of  other  citations. 

Art.  191. — From  and  after  the  service  of  such  writ  of  garnishment  it  shall  not 
be  lawful  for  the  garnishee  to  pay  to  the  defendant  any  debt  or  to  deliver  to  him 
any  effects,  nor  shall  the  garnishee,  if  an  incorjaorated  or  joint-stock  company,  in 
wMch  the  defendant  is  alleged  to  be  the  owner  of  shares  or  to  have  an  interest, 
permit  or  recognize  any  sale  or  transfer  of  such  shares  or  interest;  and  any  such 
payment,  dehvery,  sale  or  transfer  shall  be  void  and  of  no  effect  as  to  so  much  of 
said  debt,  effects,  shares  or  interest  as  may  be  necessary  to  satisfy  the  plaintiff's 
demand. 

Art.  192. — The  answer  of  the  garnishee  shall  be  imder  oath,  in  writing,  and 
signed  by  him,  and  shall  make  true  answers  to  the  several  matters  inquired  of  in 
the  writ  of  garnishment. 

Art.  193. — Should  it  appear  from  the  ans-wer  of  the  garnishee  that  he  is  not 
indebted  to  the  defendant,  and  was  not  so  indebted  when  the  writ  of  garnishment 
was  served  on  him,  and  that  he  has  not  in  his  possession  any  effects  of  the  defend- 
ant and  had  not  when  the  writ  was  served;  and  when  the  garnishee  is  an  incorpo- 
rated or  joint-stock  company  in  which  the  defendant  is  alleged  to  be  the  owner  of 
any  shares  of  stock  or  interested  therein,  if  it  shall  further  appear  frtftn  such  an- 
swer that  the  defendant  is  not  and  was  not  when  the  writ  was  served  the  o^vner  of 
any  of  such  shares,  or  interested  in  such  company;  and  shoidd  the  answer  of  the 
garnishee  not  be  controverted  as  hereinafter  provided,  the  coiirt  shall  enter  judg- 
ment discharging  the  garnishee. 

Art.  194. — ^Should  the  garnishee,  being  a  resident  of  the  county  where  the  pro- 
ceeding is  pending,  fail  to  make  answer  to  the  writ,  it  shall  be  lawful  for  the  court, 
at  any  time  after  judgment  shall  have  been  rendered  against  the  defendant,  and  on 
or  after  default  day,  to  render  judgment  by  default  against  such  ^rnishee  for  the 
full  amount  of  such  judgment  against  the  defendant,  with  aU  accruing  interest  and 
costs. 

Art.  195. — If  the  garnishee  resides  in  some  other  county  than  that  in  which  the 
proceeding  is  pending,  and  fails  to  make  answer  to  the  writ,  the  court  shall,  on  mo- 
tion of  the  plaintiff,  issue  a  commission  addressed  to  the  clerk  of  the  district  court, 
the  county  judge,  the  clerk  of  the  county  com-t,  or  any  notary  public  of  the  county 
in  which  the  garnishee  is  alleged  to  reside  or  be,  lequiring  bim  to  cite  such  gar- 
nishee to  answer  the  writ  of  garnishment. 

Aet.  196. — The  following  form  of  commission  may  be  used: 
The  state  of  Texas. 

To  the  clerk  of  the  district  court,  the  county  judge,  clerk  of  the  coimty  court, 
or  any  notary  public  of coimty,  greeting;  Whereas,  on  the day  of , 


692  TEXAS. 

-,  in  a  certain  cause  pending  in  this  court,  wherein  A.  B.  is  plaintiff  and  C 


D.  is  defendant,  the  plaintiff  claiming  an  indebtedness  against  the  said  C.  D.  of 

dollars,  besides  interest  and  costs  of  suit,  a  writ  of  garnishment  was  issued 

by  this  court  against  E.  F. ,  of  your  county,  which  was  afterward  returned  duly 

served  on  the day  of  ,  18—;  and  whereas  the  Kaid  E.  F.  has  failed  to 

make  answer  to  the  said  Avrit,  now,  therefore,  you  are  hereby  commanded  forth- 
with to  summon  the  said  E.  F.  before  you,  to  answer  upon  oath  what,  if  anything, 
he  is  indebted  to  the  said  0.  D.  and  was  when  the  said  writ  of  garnishment  was 
served  upon  him,  and  what  eilects,  if  any,  of  the  said  C.  D.  he  has  in  his  posses- 
sion and  had  when  the  said  writ  was  served,  and  what  other  persons,  if  any,  within 
his  knowledge,  are  indebted  to  the  said  C.  D.,  or  have  effects  belonging  to  him  iu 
their  possession  [and  if  the  garnishee  be  an  incorporated  or  joint-stock  company, 
in  which  the  defendant  is  alleged  to  be  the  owner  of  shares,  or  interested  therein, 
the  commission  shall  proceed:  and  further  to  answer  what  number  of  shares,  if  any, 
the  said  C.  D.  owns  in  such  company  and  owned  when  the  said  Avrit  was  served, 
and  what  interest,  if  any,  he  has  in  said  company  and  had  when  the  said  wTit  was 
served].     Herein  faU  not,  but  of  this  commission  make  return  forthwith. 

Art.  197. — The  commission  shall  be  dated  and  tested  as  virrits  usually  are. 

Art.  198. — Upon  the  receipt  of  such  commission,  by  any  of  the  officers  named 
in  the  preceding  article,  he  shall  immediately  issue  a  citation,  directed  to  the  sher- 
iff or  any  constable  of  his  coimty,  commanding  him  forthwith  to  summon  the  gai-- 
nishee  to  ajipear  before  him  at  a  time  and  place  to  be  named  in  the  citation,  to 
answer  upon  oath  as  directed  in  article  one  hundred  and  ninety-six. 

Art.  199. — The  following  form  of  writ  may  be  used  in  such  cases: 
The  state  of  Texas, 

To  the  sheriff  or  any  constable  of  county,  greeting:  Whereas,  in  a  cer- 
tain cause  pending  in  the court  of  county  [if  a  justice's  court  state 

the  number  of  the  precinct],  wherein  A.  B.  is  plaintiff  and  C.  D.  is  defendant, 

wherein  the  plaintiff  claims  of  the  said  defendant  the  sum  of dollars,  besides 

interest  and  costs  of  suit,  a  writ  of  garnishment  was  issued  against  E.  F.  of  your 
county,  which  was  duly  served  upon  him  on  the day  of ,  18 — ,  requir- 
ing him  to  answer  thereto  before  the  said  court  at  its  late  term;  and  whereas,  the 
said  garnishee  has  failed  to  answer  as  required  by  said  writ;  and  whereas,  a  com- 
mission has  been  issued  liy  the  said  court  and  lodged  in  my  hands,  whereby  I  am 
commanded  to  summon  the  said  E.  F.  before  me  to  make  such  answer:  Therefore, 
you  are  hereby  commanded  forthwith  to  summon  the  said  E.  F. ,  if  to  be  found 

within  your  county,  to  be  and  appear  before  me,  at  my  office  in ,  on  the 

day  of  •,  18 — ,  then  and  there  to  answer  upon  oath  what,  if  anything,  he  is 

indebted  to  the  aforesaid  C.  D.,  and  was  when  the  aforesaid  ^^Tit  of  garnishment 
was  so  served  ujion  him,  and  what  effect.?,  if  any,  of  the  said  C.  D.  he  has  in  his 
possession  and  liad  when  the  said  writ  was  so  served;  and  what  other  persons,  if 
any,  within  his  knowledge,  are  indebted  to  tue  said  C  D. ,  or  have  effects  belong- 
ing to  him  in  their  possession  [and  if  the  garnishee  is  an  incorporated  or  joint-stock 
company,  in  which  the  defendant  is  alleged  to  be  the  owner  of  shares,  or  inter- 
ested therein,  the  writ  shall  proceed:  and  further,  to  answer  what  number  of 
shares,  if  any,  the  said  C.  D.  owns  in  such  company  and  owned  when  the  said  WTit 
was  served?  and  what  interest,  if  any,  he  has  in  such  companj^,  and  had  when  the 
said  writ  was  served].     Herein  fail  not,  but  of  this  writ  make  retiu-n  forthwith. 

Art.  200. — The  writ  shall  be  dated  and  tested  by  the  officer  issuing  it,  with  his 
official  signatm-e  and  seal  of  office. 

Art.  201. — The  sheriff  or  constable  receiving  such  writ  shall  immediately  jiro- 
ceed  to  execute  the  same  by  delivering  a  copy  thereof  to  the  garnishee,  and  shall 
make  return  thereof  without  delay  to  the  officer  who  issued  it. 

Art.  202.— Should  the  garnishee  appear  and  answer,  in  obedience  to  the  writ, 
the  officer  executing  the  commission  shall  return  the  same,  together  ^\•ith  the  an- 
swer of  the  garnishee,  duly  certified  under  his  hand  and  seal  of  office,  to  the  clerk 
of  the  court  or  justice  of  the  peace  who  issued  it;  whereupon  lilce  proceedings  "snail 
be  had  as  provided  in  cases  of  answers  of  a  garnishee  residing  in  the  county. 

Art.  203.— -Should  the  garnishee  fail  to  appear  in  obedience  to  the  writ,  or  hav- 
ing appeared,  should  he  fail  or  refuse  to  answer,  or  to  answer  fully,  the  officer  hold- 
ing such  commission  shall  return  the  same,  together  with  the  citation  for  the 
garnishee  issued  by  him,  and  the  service  indorsed  thereon,  and  a  statement  duly 
certified  by  him  under  his  hand  and  seal  of  office  of  such  failure  or  refusal,  to  the 
clerk  of  the  court  or  justice  of  the  j^eace  who  issued  the  commission. 

Art.  204. — Upon  the  return  of  such  commission  with  the  citation  for  the  gar- 
nishee, and  the  return  thereon,  and  the  certificate  of  such  failure  or  refi:isal  of  the 


TEXAS.  693 

garnishee  to  answer,  as  mentioned  in  the  preceding  article,  it  shall  be  lawful  for 
the  coui-t  at  any  time  after  judgment  shall  have  been  rendered  against  the  defend- 
ant, and  on  oi-  after  default  day,  to  render  judgment  against  such  garnishee  for  the 
full  amount  of  such  judgTnent  against  the  defendant,  with  all  accruing  interest  and 
costs,  unless  the  defendant  shall  have  previously  filed  a  full  and  complete  ansv>'er 
to  the  writ,  and  shall  have  also  shown  some  good  and  sufficient  excuse  for  his  fail- 
xu'e  to  appear  and  answer  before  the  officer  holding  such  commission. 

Art.  205. — Should  it  appear  from  the  answer  of  the  garnishee,  made  in  either 
of  the  modes  iirovided  for  in  this  chapter,  or  should  it  be  otherwise  made  to  appear 
as  hereinafter  provided,  that  the  gr.rnishee  is  indebted  to  the  defendant  in  any 
amount,  or  was  so  indebted  when  the  writ  of  garnishment  was  served,  the  court 
shall  render  judgment  for  the  plaintiff  against  the  garnishee,  for  the  amount  so  ad- 
mitted, or  found  to  be  due  to  the  defendant  from  the  garnishee,  unless  such  amount 
shall  exceed  the  amount  of  the  plaintiff's  judgment  against  the  defendant,  with  in- 
terest and  costs,  in  which  case  it  shall  be  for  the  amount  of  such  judgment,  interest 
and  costs. 

Art.  206. — Should  it  appear  from  the  garnishee's  answer,  or  otherwise,  that 
the  garnishee  has  in  his  possession,  or  had  when  the  writ  was  served,  any  effects  of 
the  defendant  liable  to  execution,  the  com-t  shall  render  a  decree  requiidng  the  gar- 
nishee to  deliver  up  to  the  sheriff  or  any  constable  j^resenting  an  execution  in  favor 
of  the  plaintiff  against  the  defendant,  such  effects  or  so  much  of  them  as  may  be 
necessary  to  satisfy  such  execution. 

Art.'  207. — Should  the  garnishee  be  adjudged  to  have  effects  of  the  defendant  in 
his  possession  as  provided  iu  the  pi'eceding  article,  fail  or  refuse  to  deliver  them  to 
the  sheriff  or  constable  on  such  demand,  the  officer  shall  immediately  make  return 
of  such  failure  or  refusal,  whereupon,  on  motion  of  the  plaintiff,  the  garnishee 
shall  be  cited  to  show  cause  at  the  next  term  of  the  court  why  he  should  not  be  at- 
tached for  contempt  of  court  for  such  failure  or  refusal;  and  should  the  garnishee 
fail  to  show  good  and  sufficient  excuse  for  such  failure  or  refusal,  he  shall  be  fined 
for  such  contempt  and  imprisoned  until  he  shall  deliver  such  effects. 

Art.  208. — Where  the  garnishee  is  an  incorporated  or  joint-stock  company,  and 
it  appears  from  the  answer,  or  otherwise,  that  the  defendant  is,  or  was  when  the 
writ  of  garnislmient  was  served,  the  o^vner  of  any  .shares  of  stock  in  such  company, 
or  any  interest  therein,  the  court  shall  render  a  decree,  ordering  the  sale  under 
execution  in  favor  of  the  plaintiff  against  the  defendant  of  such  shares,  or  interest 
of  the  defendant  in  such  company,  or  so  much  thereof  as  may  be  necessary  to 
satisfy  such  execution. 

Art.  209. — The  sale  so  ordered  sha'l  be  conducted  in  all  respects  as  other  sales 
of  personal  i^roperty  under  execution,  and  the  sheriff  or  constable  making  such 
Bale  shall  execute  a  transfer  of  such  shares  or  interest  to  the  purchaser,  with  a  brief 
recital  of  the  judgment  of  the  coiu-t  under  which  the  same  was  sold. 

Art.  210. — Such  sale  shall  be  valid  and  effectual  to  pass  to  the  purchaser  all  the 
right,  title  and  interest  which  the  defendant  had  in  such  shares  of  stock,  or  in  such 
company,  and  the  proper  officers  of  such  company  shall  enter  such  sale  and  transfer 
on  the  books  of  the  company  in  the  same  manner  as  if  the  same  had  been  made  by 
the  defendant  himself. 

Art.  211. — If  the  plaintiff  should  not  be  satisfied  with  the  answer  of  any  gar- 
nishee, he  may  controvert  the  same  by  an  affidavit  in  ■writing,  signed  by  him,  stat- 
ing that  he  has  good  reason  to  believe,  and  does  believe,  that  the  answer  of  the 
garnishee  is  incorrect,  stating  in  what  particular  he  believes  the  same  is  incorrect. 

Art.  212. — The  defendant  may  also,  in  like  manner,  controvert  the  answer  of 
the  garnishee. 

Art.  213.— If  the  garnishee  whose  answer  is  controverted,  as  provided  in  the  two 
preceding  articles,  is  a  resident  of  the  county  in  which  the  proceeding  is  pending, 
an  issue  shall  be  formed  under  the  direction  of  the  coiirt  and  tried  as  other  cases. 

Art.  214. — If  the  garnishee  whose  answer  is  so  controverted  be  a  resident  of 
some  county  other  than  that  in  which  the  proceeding  is  iiending,  the  plaintiff  may 
file  in  any  court  of  the  county  where  the  garnishee  may  reside,  having  jurisdiction 
of  the  amount  of  the  judgment  in  the  original  suit,  a  duly  certified  copy  of  such 
original  judgment  and  of  the  proceedings  in  garnishment,  including  the  plaintiff's 
application  for  the  writ  and  the  answer  of  the  garnishee  and  the  affidavit  contro- 
verting the  same. 

Art.  21.5. — It  shall  be  the  duty  of  the  clerk  of  such  court  or  the  justice  of  the 
peace,  as  the  ease  may  be,  on  receiving  such  certified  copies,  to  docket  the  case  in 


694  UTAH. 

the  name  of  the  plaintiff  as  plaintiff,  and  of  the  garnishee  as  defendant,  and  to 
issue  a  notice  to  the  garnishee,  stating  that  his  answer  has  been  controverted,  and 
that  the  issue  between  him  and  the  plaintiff  will  stand  for  trial  at  the  next  term  of 
the  court. 

Art.  216. — Such  notice  shall  be  directed  to  the  sheriff  or  constable  of  the 
county,  and  shall  be  dated  and  tested  as  other  process  from  such  court,  and  shall 
be  served  by  delivering  a  copy  thereof  to  the  defendant. 

Art.  217. — Upon  the  return  of  such  notice  served,  an  issue  shall  be  formed 
under  the  direction  of  the  court  and  tried  as  other  cases. 

Art.  218. — No  current  wages  for  personal  service  shall  be  subject  to  garnish- 
ment; and  where  it  appears  upon  the  trial  that  the  garnishee  is  indebted  to  the 
defendant  for  such  current  wages,  the  garnishee  shall  nevertheless  be  discharged  as 
to  such  indebtedness. 

Art.  219. — Where  the  garnishee  is  discharged  upon  his  answer,  the  costs  of  the 
proceeding,  includiag  a  reasonable  compensation  to  the  garnishee,  shall  be  taxed 
against  the  plaintiff;  where  the  answer  of  the  garnishee  has  not  been  controverted 
and  the  garnishee  is  held  thereon,  such  costs  shall  be  taxed  against  the  defendant 
and  included  in  the  execution  provided  for  in  this  chapter;  where  the  answer  is 
contested,  the  costs  shall  abide  the  issue  of  such  contest. 

Art.  220. — It  shall  be  a  sufficient  answer  to  ^ny  claim  of  the  defendant  against 
the  garnishee  founded  on  any  indebtedness  of  such  garnishee,  or  on  the  pogsession 
by  him  of  any  effects,  or  where  the  garnishee  is  an  incorporated  or  joint-stock  com- 
pany in  which  the  defendant  was  the  owner  of  shares  of  stock  or  other  interest 
therein,  for  the  garnishee  to  show  that  such  indebtedness  was  paid,  or  such  effects 
were  delivered,  or  such  shares  of  stock  or  other  interest  in  such  company  were  sold 
imder  the  judgment  of  the  court  in  accordance  with  the  provisions  of  this  chapter. 


County  court  may  grant — Art.  1170. 
May  be  issued  on  Sunday — Art.  1184. 
Justices  of  the  peace — Arts.  1542,  1644. 
Against  estates  of  deceased  persons — Art.  1822. 
Exemptions — Sees.  2335-23^. 


UTAH. 

[SXATCrTES   OF   1884] 


CHAPTER  IV. 

ATTACHMENTS. 


§  410. — The  plaintiff,  at  the  time  of  issmng  the  summons,  or  at  any  time  after- 
ward, may  have  the  property  of  the  defendant  attached,  as  security  for  the  satis- 
faction of  any  judgment  that  maj'  be  recovered,  unless  the  defendant  give  security 
to  pay  such  judgment,  as  in  this  chapter  provided,  in  the  following  cases: 

1.  In  an  action  upon  a  judgment  or  upon  a^ contract,  express  or  implied,  which 
is  not  secured  by  any  mortgage  or  lien  upon  real  or  personal  property  situate  or 
being  in  this  territory,  or,  if  originally  so  secured  such  security  has,  without  any 
act  of  the  plaintiff,  or  of  the  person  to  whom  the  security  was  given,  become 
valueless. 

2.  In  an  action  upon  a  judgment  or  upon  a  contract,  express  or  implied,  against 
a  defendant  not  residing  in  this  territory. 

3.  In  an  action  upon  a  judgment  or  upon  a  contract,  express  or  implied,  against 
any  person  who, 


UTAH,  G95 

a.  Stands  in  defiance  of  an  officer,  or  conceals  himself  so  that  process  cannot 
t  be  served  upon  him;  or, 

6.  Has  assigned,  disposed  of  or  concealed,  or  is  about  to  assign,  dispose  of  or 
conceal  any  of  his  property  with  intent  to  defraud  his  creditors;  or, 

c.  Has  departed,  or  is  about  to  depart  from  the  territory,  to  the  injury  of  his 
creditors;  or, 

d.  Fraudulently  contracted  the  debt  or  inciu-red  the  obligation  respecting  which 
the  action  is  brought. 

§  411. — The  clerk  of  the  court  shall  issue  the  writ  of  attachment  upon  receiving 
an  affidavit  by  or  on  behalf  of  the  plaintiff,  which  shall  be  filed,  setting  forth: 

1.  That  the  defendant  is  indebted  to  the  plaintiff,  specifying  the  amount  of  such 
indebtedness,  as  near  as  may  be,  over  and  above  all  legal  set-offs  or  counter-claims, 
and  whether  upon  a  judgment  or  an  express  or  implied  contract,  and  that  the  pay- 
ment of  the  same  has  not  been  secured  by  any  mortgage  or  lien  upon  real  or  per- 
sonal i^roperty,  or  any  pledge  of  personal  pro^Derty,  situate  or  being  in  this 
territory;  or,  if  originally  so  secured,  that  such  security  has,  without  any  act  of 
the  plaintiff,  or  the  person  to  whom  the  seciu-ity  was  given,  become  valueless;  and 
that  the  same  is  an  actual  bona  fide  existing  demand  due  and  owing  from  the 
defendant  to  the  plaintiff. 

2.  And  in  all  cases  that  the  attachment  is  not  sought  and  the  action  is  not  pros- 
ecuted to  hinder,  delay  or  defraud  any  creditor  of  the  defendant,  and  also  specify- 
ing one  or  more  of  the  causes  set  forth  in  the  preceding  section. 

§  412. — Before  issuing  the  writ  the  clerk  must  require  a  written  undertaking  on 
the  part  of  the  plaintiff,  in  a  sum  not  less  than  two  hundred  dollars,  and  not  ex- 
ceeding the  amount  claimed  by  the  plaintiff,  with  sufficient  sureties,  to  the  effect 
that  if  the  defendant  recover  judgment,  or  if  the  attachment  be  %TTongfully  issued, 
the  plaintiff  will  pay  all  costs  that  may  be  awarded  to  the  defendant,  and  all  dam- 
ages which  he  may  sustain  by  reason  of  the  attachment,  not  exceeding  the  sum 
sj)ecified  in  the  undertaking. 

§  413. — The  -writ  must  be  directed  to  the  United  States  marshal,  or  to  the  sheriff 
of  any  county  in  which  property  of  such  defendant  may  be,  and  must  require  him 
to  attach  and  safely  keep  all  the  property  of  such  defendant  within  his  jurisdiction 
not  exempt  from  execution,  or  so  much  thereof  as  may  be  sufficient  to  satisfy  the 
plaintiff's  demand,  and  the  amount  of  which  must  be  stated  in  conformity  with  the 
complaint,  unless  the  defendant  give  him  seciu-ity  by  the  imdertaking,  of  at  least 
two  sufficient  sureties,  in  an  amount  sufficient  to  satisfy  such  demand,  besides 
costs,  or  in  an  amount  equal  to  the  value  of  the  property  which  has  been  or  is  about 
to  be  attached,  in  which  case  to  take  such  undertaking.  Several  ^vrits  may  be 
issued  at  the  same  time  to  the  marshal,  or  the  sheriffs  of  different  counties;  and 
the  plaintiff  may  have  other  writs  of  attachment  as  often  as  he  may  require  at  any 
time  before  judgment. 

§  414. — The  rights  or  shares  which  the  defendant  may  have  in  the  stock  of  any 
corporation  or  comiDany,  together  with  the  interest  and  profit  thereon,  and  all  debts 
due  siich  defendant,  and  all  other  property  in  this  territory  of  such  defendant  not 
exempt  from  execution,  may  be  attached,  and,  if  judgment  be  recovered,  be  sold 
to  satisfy  the  judgment  and  execution. 

§  415. — The  officer  to  whom  the  writ  is  directed  and  delivered,  must  execute 
the  same  without  delay,  and  if  the  undertaking  mentioned  in  section  four  hund- 
red and  thirteen  be  not  given,  as  follows: 

1.  Ileal  property,  standing  upon  the  records  of  the  county  in  the  name  of  the 
defendant,  must  be  attached  by  filing  with  the  recorder  of  the  county  a  copy  of 
the  %vrit,  together  with  a  description  of  the  property  attached  and  a  notice  that  it 
is  attached,  and  by  leaving  a  similar  copy  of  the  writ,  description  and  notice  with 
an  occupant  of  the  property,  if  there  is  one;  if  not,  then  by  posting  the  same  in  a 
conspicuous  place  on  the  property  attached. 

2.  Ileal  property  or  an  interest  therein,  belonging  to  the  defendant,  and  held  by 
any  other  person,  or  standing  on  the  records  of  the  county  in  the  name  of  any 
other  person,  must  be  attached  by  filing  with  the  recorder  of  the  county  a  cojiy  of 
the  writ,  together  with  a  description  of  the  property  and  a  notice  that  such  real 
property  and  any  interest  of  the  defendant  therein,  held  by  or  standing  in  the 
name  of  such  other  person  (naming  him)  are  attached;  and  by  leaving  with  the 
occupant,  if  any,  and  with  such  other  person  or  his  agent,  if  known  and  within 
the  county,  or  at  the  residence  of  either,  if  within  the  county,  a  copy  of  the  writ, 
with  a  similar  description  and  notice.  If  there  is  no  occupant  of  the  property,  a 
copy  of  the  writ,  together  with  such  description  and  notice,  must  be  posted  in  a 
conspicuous  place  upon  the  ijroperty.     The  recorder  must  index  such  attachment 


696  UTAH. 

when  filed  in  tlie  names  both  of  the  defendant  and  of  the  person  by  whom  the 
property  is  held,  or  ia  whose  name  it  stands  on  the  records. 

3.  Personal  property  capable  of  manual  delivery  must  be  attached  by  taking  it 
into  custody. 

4.  Stocks  or  shares,  or  interest  in  stocks  or  shares,  of  any  corporation  or  com.- 
pany,  must  be  attached  by  leaving  ■\vith  the  president,  or  other  head  of  the  same, 
or  the  secretary,  cashier,  or  other  managing  agent  thereof,  a  copy  of  the  writ,  and 
a  notice  stating  the  stock  or  interest  of  the  defendant  is  attached  in  pursuance  of 
such  writ. 

5.  Debts  and  credits,  and  other  personal  property,  not  capable  of  manual  de- 
livery, must  be  attached  by  leaving  with  the  person  owing  such  debts,  or  having 
in  his  po  session,  cr  under  his  control,  such  cre('its  or  other  jjcrsonal  proioerty,  or 
Vv'ith  his  ageut,  a  copy  of  the  writ,  and  a  notice  that  the  debts  owing  by  him  to 
the  defendant,  or  the  credits  or  other  personal  property  in  his  possession  or  imder 
his  control  belonging  to  defendant,  are  attached  in  piirsuance  of  said  writ. 

§  41G — Upon  receiving  information  in  writing  from  the  plaintiif  or  his  attorney, 
that  any  person  has  in  his  possession,  or  under  liis  control,  any  credits  or  other 
personal  property  belonging  to  the  defendant,  or  is  owing  any  debt  to  the  defend- 
ant, thj  OiScer  making  the  service  must  serve  upon  such  person  a  copy  of  the  writ, 
and  a  notice  that  such  credits,  or  other  property  or  debts,  as  the  case  may  be,  are 
attached  in  pursuance  of  such  writ. 

§  417. — All  persons  having  in  their  possession,  or  under  their  control,  any  credits 
or  other  personal  property  behjuging  to  the  defendant,  or  owing  any  debts  to  the 
defendant  at  the  time  of  ser\'ice  upon  them  of  a  copy  of  the  writ  and  notice  as 
provided  in  the  last  two  sections,  shall  be,  unless  such  property  be  delivered  up  or 
transferred,  or  such  debts  be  paid  to  the  officer,  liable  to  the  plaintiff  for  the 
amount  of  such  credits,  proiDerty  or  debts,  until  the  attachment  be  discharged,  or 
any  judgment  recovered  by  him  be  satisfied. 

§  418.  — Any  person  owing  debts  to  the  defendant,  or  having  in  his  possession 
or  under  his  control  any  credits  or  other  personal  property  belonging  to  the  defend- 
ant, may  be  required  to  attend  before  the  court,  or  judge,  cr  a  referee  a;jpointed 
by  the  court,  or  judge,  and  be  examined  on  oath  respecting  the  same.  The  defend- 
ant may  also  be  required  to  attend  for  the  purpose  of  giving  information  respecting 
his  property,  and  may  be  examined  on  oath.  The  court,  or  judge,  may,  after  such 
examination,  order  personal  property,  capable  of  manual  delivery,  to  be  delivered 
1 3  the  officer,  on  such  terms  as  maj'  be  just,  having  reference  to  any  liens  thereon 
or  claims  agamst  the  same,  and  a  memorandum  to  be  given  of  all  other  personal 
property,  containing  the  amount  and  description  thereof. 

§  419. — The  officer  making  the  service  must  make  a  full  inventory  of  the  prop- 
erty attached  and  return  the  same  with  the  ^vrit.  To  enable  him  to  make  such 
returns  as  to  the  debts  and  credits  attached,  he  must  request,  at  the  time  of  serv- 
ice, the  party  owang  the  debt,  or  having  the  credit,  to  give  him  a  memorandum 
stating  the  amount  and  description  of  each;  and  if  such  memorandum  be  refused, 
he  must  return  the  fact  of  refusal  with  the  writ.  The  party  refusing  to  give  the 
memorandum  may  be  required  to  pay  the  costs  of  any  proceeding  taken  for  the 
puri^ose  of  obtaining  information  respecting  the  amount  and  description  of  such 
debt  or  credit. 

§  420. — If  any  of  the  property  attached  be  perishable,  the  officer  must  sell  the 
same  in  the  manner  in  which  such  projjerty  is  sold  on  execution.  The  proceeds 
and  other  property  attached  by  him  must  be  retained  bj'  him,  to  answer  any  judg- 
ment that  may  be  recovered  in  the  action,  unless  sooner  subjected  to  execution 
upon  another  judgment  recovered  previous  to  issuing  the  attachment.  Debts  and 
credits  attached  may  be  collected  by  him,  if  the  same  can  be  done  without  suit. 
The  receipt  of  the  officer  is  a  sufficient  discharge  for  the  amount  paid. 

§  421. — "Whenever  property  has  been  taken  by  an  officer  under  a  MTit  of  attach- 
ment, and  it  is  made  to  appear  satisfactorily  to  the  court,  or  a  judge  thereof,  that 
the  interest  of  the  parties  to  the  action  will  be  subserved  by  a  sale  thereof,  the 
court  or  judge  may  order  such  property  to  be  sold  in  the  same  manner  as  property 
is  sold  under  an  execution,  and  the  proceeds  to  be  deposited  in  the  court,  to  abide 
the  judgment  in  the  action.  Suclf  order  can  be  made  only  upon  notice  to  the  ad- 
verse party  or  his  attorney,  in  case  such  party  has  been  personally  served  with  a 
summons  in  the  action. 

§  422. — If  any  personal  property  attached  be  claimed  by  a  third  person  as  his 
property,  the  officer  may  summon  a  jury  of  six  men  to  try  the  validity  of  such 
claim,  and  such  proceedings  shall  be  had  thereon,  wi'.ii  like  effect,  as  in  case  of  a 
claim  after  levy  upon  execution. 


UTAH,  G97 

§423. — If  judgTOcnt  be  recovered  by  the  plaintiff,  the  officer  mu'^t  satisfy  the 
same  out  of  tlio  property  attached  by  him  wliiuh  has  not  been  delivered  to  the 
defendi.nt,  or  a  claimant,  as  hereinbefore  provided,  or  subjected  to  execution  on 
aniit.her  jud:-fment  recovered  previous  to  the  issuing' of  the  attachment,  if  it  be 
sufficient  for  that  purpose: 

1.  By  payiuLf  to  the  plaintiff  the  proceeds  of  all  sales  of  perishable  property 
sold  by  him,  or  of  any  debts  or  credits  collected  by  him,  or  so  much  as  shall  be 
necessary  to  satisfy  the  jud'-;ment. 

2.  If  any  balance  remain  due,  and  an  execution  shall  have  been  issued  on  the 
judirment,  he  must  sell  under  the  execution,  so  much  of  the  property,  real  or  i^er- 
sonal,  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for  that  purpose  remain 
in  his  hands.  Notice  of  the  sales  must  be  given,  and  the  sales  conducted  as  in 
other  cases  of  sales  on  execution. 

§  424. — If,  after  selling  all  the  property  attached  by  him  remaining  in  his  hands, 
and  applying  the  proceeds,  together  with  the  proceed.?  of  any  debts  or  credits  col-, 
lected  by  him,  deducting  his  fees,  to  the  payment  of  the  judgment,  any  balance 
shall  remain  due,  the  officer  must  proceed  to  collect  such  balance,  as  upon  an  exe- 
cution in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  officer, 
upon  reasonable  demand,  must  deliver  over  to  the  defendant  the  attached  property 
remaining'  in  his  hands,  and  any  proceeds  of  the  property  attached,  unapplied  on 
the  judgment. 

§  42.5. — If  the  execution  be  returned  unsatisfied,  in  whole  or  in  part,  the  plaintiff 
may  prosecute  any  undertaking  given  pursuant  to  section  four  hundred  and  thir- 
teen (113),  or  section  four  hundi-ed  and  twenty -eight  (428),  or  he  may  isroceed  as  in 
other  cases  upon  the  return  of  an  execution. 

§  423. — If  the  defendant  recover  judgment  against  the  plaintiff,  any  undertaking 
received  in  the  action,  all  the  proceeds  of  sales  and  money  collected  by  the  officer, 
and  all  the  property  attached  remaining  in  his  hands,  must  be  delivered  to  the 
defendant,  or  his  agent;  the  order  of  attachment  shall  be  discharged,  and  the  prop- 
erty released  therefrom. 

§427. — Whenever  the  defendant  has  appeared  in  the  action,  he  may,  upon 
reasonable  notice  to  the  plaintiff,  apply  to  the  court  in  which  the  action  is  pending, 
or  to  the  judge  thereof,  for  an  order  to  discharge  the  attachment,  wholly  or  in  jDart; 
and  upon  the  execution  of  the  undertaking  mentioned  in  the  next  section,  an  order 
may  be  made,  releasing  from  the  operation  of  the  attachment,  any  or  all  of  the 
property  attached  and  all  of  the  property  so  released,  and  all  of  the  proceeds  of 
the  sales  thereof  must  be  delivered  to  the  defendant  upon  the  justification  of  the 
sureties  on  the  undertaking,  if  required  by  the  i^laintiff. 

§  428. — Before  making  an  order,  the  court  or  judge  must  require  an  undertaking 
on  behalf  of  the  defendant,  by  at  least  two  sureties,  residents  and  freeholders,  or 
householders,  in  the  territory,  to  the  effect  that  in  case  the  plaintiff  recover  judg- 
ment in  the  action,  defendant  wdll,  on  demand,  redeliver  the  attached  property  so 
released,  to  the  proper  officer,  to  be  applied  to  the  payment  of  the  judgment,  or  in 
default  thereof,  that  the  defendant  and  sm'eties  will,  on  demand,  pay  to  the  plaintiff 
the  full  value  of  the  property  released.  The  court  or  judge,  making  such  oi-der, 
ma;-  fix  the  sum  for  which  the  undertaking  must  be  executed,  and  if  necessary,  in 
fixing  ouch  sum,  to  know  the  value  of  the  property  released,  the  same  may  be  ap- 
praised by  one  or  more  disinterested  persons,  to  be  appointed  for  that  purpose. 
The  sureties  may  be  required  to  justify  before  the  court  or  judge,  and  the  property 
attached  cannot  be  released  from  the  attachment  without  *heir  justification,  if  the 
same  be  required. 

§  429. — The  defendant  may,  also,  at  any  time,  either  before  or  after  the  release 
of  the  attached  property,  or  before  any  attachment  shall  have  been  actually  levied, 
upon  reasonable  notice  to  the  plaintiff,  ajiply  on  motion  to  the  court  in  v/hicli  the 
action  is  brought,  or  to  the  judge  thereof,  for  the  discharge  of  the  writ  of  attach- 
ment, on  the  .ground  that  the  same  was  improperly  or  irregularly  issued. 

§  430. — If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant, 
but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  affidavits,  or  other  evi- 
dence, in  addition  to  those  on  which  the  attachment  was  made. 

§  431. — If  upon  such  application  it  satisfactorily  appears  that  the  writ  of  attach- 
ment was  imjiroperly  or  irregularly  issued,  it  must  be  discharged. 

§  432.  — The  officer  making  the  service  must  return  the  writ  of  attachment  with 
the  summons,  if  issued  at  the  same  time;  otherwise  within  twenty  days  after  its 
receipt,  with  a  certiiicate  of  his  proceedings  indorsed  thereon  or  attached  thereto; 
and  whenever  an  order  has  been  made,  discharging  or  releasing  an  attachment 


G98  VIRGINIA. 

upon  real  property,  a  certified  copy  of  sucli  order  may  be  filed  in  the  office  of  the 
county  recorder  in  which  the  notice  of  attachment  has  been  filed,  and  be  indexed 
in  like  manner. 


Before  justices  of  the  peace — Sees.  748-751. 
Exemptions — Sees.  569,  570. 


VIRGINIA. 

[Code  op  1873,  and  Subsequent  Statutes.] 


CHAPTER  CSLVin. 

OF  ATTACHMEXTS,   AND   OF  BAIL. 

§  1. — When  any  suit  is  instituted  for  any  debt,  or  for  damages  for  breach  of  any 
contract,  an  affidavit  stating  the  amount  and  justice  of  the  claim,  that  there  is 
present  cause  of  action  therefor,  that  the  defendant  or  one  of  the  defendants  is  not 
a  resident  of  this  state,  and  that  the  affiant  believes  he  has  estate  or  debts  due  him 
within  the  county  or  corporation  in  which  the  suit  is,  or  that  he  is  sued  with  a  de- 
fendant residing  therein,  the  plaintiff  may  forthwith  sue  out  of  the  clerk's  office 
an  attachment  against  the  estate  of  the  non-resident  defendant  for  the  amount  so 
stated. 

§  2. — An  affidavit  at  the  time  of  or  after  the  institution  of  any  suit  that  the 
plaintiff's  claim  is  believed  to  be  just,  and,  where  the  suit  is  to  recover  specific  per- 
sonal property,  stating  the  nature,  and,  according  to  the  affiant's  belief,  the  value 
of  such  property,  and  the  probable  amount  of  damages  the  plaintiff  will  recover 
for  the  detention  thereof,  or  where  it  is  to  recover  money  for  any  claim  or  damages 
for  any  wrong,  stating  a  certain  sum  which  (at  the  least)  the  affiant  believes  the 
plaintiff  is  entitled  to  or  ought  to  recover,  and  an  affidavit  also  that  the  affiant  be- 
lieves that  the  defendant  is  removing  or  intends  to  remove  such  specific  property 
or  his  own  estate,  or  the  proceeds  of  the  sale  of  his  property,  or  a  material  part  of 
such  estate  or  proceeds,  out  of  this  state,  so  that  process  of  execution  on  a  judg- 
ment in  said  suit,  when  it  is  obtained,  will  be  unavailing,  in  any  such  case  the 
clerk  shall  issue  an  attachment  as  the  case  may  require.  If  the  suit  be  for  specific 
property,  the  attachment  may  be  against  the  specific  property  sued  for,  and  against 
the  defendant's  estate  for  so  much  as  is  sufficient  to  satisfy  the  probable  damages 
for  its  detention,  or  at  the  option  of  the  ])laintiff,  against  the  defendant's  estate  for 
the  value  of  such  specific  property  and  the  damages  for  its  detention.  If  the  suit 
be  to  recover  money  for  a  claim,  or  damages  for  a  wrong,  the  attachment  shall  be 
against  the  defendant's  estate,  for  the  amount  specified  in  the  affidavit  as  that 
which  the  affiant  believes  the  i^laintiff  is  entitled  to  or  ought  to  recover. 

§3. — On  complaint  by  any  person,  or  his  agent,  to  any  justice,  whether  his 
claim  is  payable  or  not,  that  his  debtor  intends  to  remove,  or  is  removing,  or  has 
removed  his  effects  out  of  this  state,  so  that  there  will  probably  not  be  therein  suf- 
ficient effects  of  the  debtor  to  satisfy  the  claim  when  jud.gment  is  obtained  there- 
for, should  only  the  ordinary  process  of  law  be  used  to  obtain  such  judgment,  if 
such  person,  or  his  agent,  make  oath  to  the  truth  of  such  complaint,  to  the  best  of 
his  belief,  as  well  as  to  the  amount  and  justice  of  his  claim,  and  at  what  time  the 
same  is  payable,  the  justice  shall  issue  an  attachment  against  the  estate  of  the  de- 
fendant for  the  amount  so  stated. 

§4. — On  complaint  by  any  lessor,  or  his  agent,  to  a  justice,  that  any  person 
liable  to  him  for  rent  intends  to  remove,  or  is  removing,  or  has,  within  thirty  days, 
removed  his  effects  from  the  leased  premises,  if  such  lessor,  or  his  agent,  make  oath 
to  the  truth  of  such  complaint,  to  the  best  of  his  belief,  and  to  the  rent  which  is 
reserved  (whether  in  money  or  other  thing),  and  ■will  be  payable  within  one  year, 
and  the  tin^e  or  times  when  it  will  be  so  x^ayable,  and  also  make  oath  either  that 


VIRGINIA.  C99 

there  is  not,  or  he  believes,  unless  an  attachment  issues,  there  will  not  be  left  on 
Buch  premises  property  liable  to  distress  sufficient  to  satisfy  the  rent  so  to  become 
payable,  such  justice  shall  issue  an  attachment  for  the  said  rent  against  such 
goods  as  might  be  distrained  for  the  same  if  it  had  become  payable,  and  against 
any  other  estate  of  the  person  so  liable  therefor. 

§5. — If  any  person  has  any  claim  against  the  master  or  owner  of  any  steam- 
boat or  other  vessel,  raft  or  river-craft,  or  against  any  steamboat  or  other  vessel, 
raft  or  river-craft  found  within  the  jurisdiction  of  this  state,  for  materials  or  sup- 
plies furnished  or  provided,  or  for  work  done  for,  in  or  upon  the  same,  or  for 
whai'fage,- salvage,  pilotage,  or  for  any  contract  for  the  transportation  of ,  or  for 
any  injury  done  to  any  person  or  property  by  such  steamboat  or  other  vessel,  raft 
or  river-craft,  or  by  any  person  having  charge  of  her  or  in  her  employment,  such 
person  shall  have  a  lien  upon  such  steamboat  or  other  vessel,  i-aft  or  river-craft, 
for  such  material  or  supplies  furnished,  work  done,  or  services  rendered,  wharfage, 
salvage,  pilotage,  and  for  such  contract  or  injury  as  aforesaid,  and  may,  in  a  pend- 
ing suit,  sue  out  of  the  clerk's  office  of  the  circuit  coiurt  of  the  county,  or  of  the 
corporation  court  or  circuit  court  of  the  corporation  in  which  such  steamboat  or 
other  vessel,  raft  or  river-craft  may  be  foiuid,  an  attachment  against  such  steam- 
boat or  other  vessel,  raft  or  river-craft,  with  all  her  tackle,  apparel  and  furniture 
and  appurtenances,  or  against  the  estate  of  such  master  or  owner.  Any  attach- 
ment may  be  sued  out  under  this  section,  for  a  cause  of  action  that  may  have  arisen 
without  the  juri^idiction  of  this  state,  if  the  steamboat  or  other  vessel,  raft  or  river- 
craft  be  within  the  jurisdiction  of  this  state  at  the  time  the  attachment  is  sued  out 
or  executed.     [Stats.  1877-8,  p.  216.] 

§  G. — Any  attachment,  issued  under  this  chapter,  may  be  directed  to  the  sher- 
iff, sergeant  or  constable  of  any  county  or  corporation.  If  issued  in  a  pending 
suit,  it  shall  be  returnable  to  a  term  of  the  court  in  which  the  same  is  pending,  or 
to  some  rule-day  thereof.  Where  issued  by  a  justice,  it  shall,  if  the  claim  is  over 
twenty  dollars  (exclusive  of  interest),  be  returnable,  at  the  option  of  thej^laintiff, 
to  the  next  term  of  the  circuit,  county  or  corporation  court  of  the  county  or  corpo- 
ration in  which  the  debtor  last  resided,  or  in  which  the  leased  tenement  may  be. 
The  jud'ice  <-.f  the  circuit  court  to  which  any  attachment  may  be  made  returnable, 
or  any  other  circuit  court  judge,  may,  in  vacation,  upon  ten  days'  notice  to  the  at- 
taching creditor,  h^ar  testimony  upon  the  question,  and  if  of  opinion  that  the 
attachment  was  sued  out  without  sufficient  cause,  may  quash  or  dismiss  the 
attachment. 

§  7. — Every  such  attachment  (except  where  it  is  sued  out  specially  against  spe- 
cified property)  may  be  levied  upon  any  estate,  real  or  personal,  of  the  defendant, 
or  so  much  thereof  as  is  sufficient  to  piay  the  amount  for  which  it  issues,  and  may 
be  levied  ux)on  any  estate  of  the  defendant,  whether  the  same  be  in  the  county  or 
corporation  where  the  suit  is,  or  in  any  other,  either  by  the  officer  of  the  county  or 
corporation  w*herein  the  action  is  brought,  or  by  the  officer  of  the  county  or  corpo- 
ration where  the  estate  is.  It  shall  be  sufficiently  levied  in  every  case,  by  a  serv- 
ice of  a  copy  of  such  attachment  on  such  persons  as  may  be  designated  by  the 
plaintiif  in  AVTiting,  or  be  known  to  the  officer  to  be  in  possession  of  effects  of,  or 
to  be  indebted  to,  the  defendant;  and  as  to  real  estate,  by  such  estate  being  men- 
tioned and  described  by  indorsement  on  such  attachment. 

§  8. — But  if  the  plaintiff  shall,  at  the  time  of  suing  out  such  attachment,  or 
afterward,  give  bond  with  security,  approved  by  the  clerk  or  justice  issuing  the 
attachment,  in  a  penalty  of  at  least  double  the  amount  of  the  claim  sworn  to  or 
sued  for,  with  condition  to  pay  all  costs  and  damages  which  may  be  awarded 
against  him,  or  sustained  by  any  person,  by  reason  of  his  suing  out  the  attach- 
ment, the  said  officer  shall  take  possession  of  the  property  speciiied  in  the  attach- 
ment, or  where  no  such  property  is  specified,  of  any  estate  or  effects  of  the 
defendant,  or  so  much  thereof  as  is  sufficient  to  pay  the  plaintiff's  claim.  When 
such  bond  is  given,  the  fact  shall  be  indorsed  on  the  attachment,  or  certified  by 
the  clerk  or  justice  to  the  officer,  Avho  shall  return  the  said  certificate  with  the  at- 
tachment; and  the  bond,  when  taken  by  a  justice,  shall  be  returned  by  him  to, 
and  filed  in,  the  clerk's  office  of  the  cuvat  to  which  the  attachment  is  returnable. 

§  9. — In  either  case,  the  officer  shall  retiun  with  the  attachment  the  names  of 
the  persons  designated  as  having  effects  of,  or  o%vins  debts  to,  the  defendant;  shall 
summon  them  to  appear  as  garnishees,  at  the  first  day  of  the  court  to  which  the 
attachment  is  returnable,  or  if  the  attachment  be  returnable  at  rules,  at  the  first 
day  of  the  next  term  after  it  is  returnable,  and  shall  also  return  a  list  and  descrip- 
tion of  the  property  taken  (if  any)  under  such  attachment;  and  likewise  the  dat© 
of  the  service,  or  execution  thereof,  on  each  person  and  parcel  of  property. 


700  VIRGINIA. 

§  10. — Sucli  attacliment  may  be  issued  or  executed  on  Sunday,  if  oath  be  made 
tbat  the  defendant  is  actually  removing- his  effects  on  that  day. 

§  11. — On  a  suggestion  by  the  judgment  creditor  that  by  reason  of  the  lien  of 
his  vn-it  of  Jicri  facias  there  is  a  liability  on  any  person  other  than  the  judgment 
debtor,  a  summons  may  be  sued  out  of  the  said  ofMce,  or  where  the  judgment  does 
not  exceed  the  jurisdiction  of  a  justice,  may  be  sued  out  from  a  justice  against  said 
person,  to  answer  such  suggestion,  and  a  copy  thereof  shall  be  served  upon  the 
judgment  debtor,  or  if  he  be  non-resident  of  the  state,  he  shall  be  proceeded  against 
by  publication,  as  is  provided  in  section  ten  of  chapter  one  hundred  and  sixty-six 
of  the  code  of  eighteen  hundred  and  seventy -three;  the  return  day  of  which  sum- 
mons when  sued  out  from  the  clerk's  office  may  be  to  the  next  term  of  the  court, 
although  more  than  ninety  days  after  the  date  of  the  summons;  but  if  there  be 
publication  against  a  non-resident  j  udgment  debtor  who  does  not  appear  in  the 
proceedings,  there  shall  be  no  judgment  against  a  garnishee  prior  to  the  term  of 
the  court  after  the  completion  of  the  order  of  publication;  and  when  sued  out  from 
a  justice,  such  summons  may  be  made  returnable  before  any  justice  of  the  county 
or  corporation  wherein  the  same  shall  be  issued,  and  shall  be  made  returnable 
within  sixty  days  at  some  certain  place  within  such  county  or  corporation  to  be 
named  in  such  summons,  and  within  the  distiict  wherein  such  defendant  may  re- 
side at  the  time  of  the  service  of  such  summons:  Provided,  however,  that  in  a  pro- 
ceeding imder  this  statute  before  a  justice,  there  shall  be  no  order  of  j)ublication. 
[Amended  1883-4,  p.  158.] 

§  12.  — The  plaintiff  shall  have  a  lien  from  the  time  of  the  lev3dng  of  such  at- 
tachment, or  serving  a  copy  thereof  as  aforesaid,  upon  the  personal  property,  choses 
in  action,  and  other  securities  of  the  defendant  against  whom  the  claim  is,  in  the 
hands  of  or  due  from  any  such  garnishee  on  whom  it  is  so  served,  and  on  any  real 
estate  mentioned  in  an  indorsement  on  the  attachment  or  subpoena,  from  the  suing 
out  of  the  same. 

§  13.— F Any  property  levied  on  or  seized  as  aforesaid,  under  any  attachment, 
where  the  plaintiff  has  given  bond,  may  be  retained  by  or  returned  to  the  person 
in  whose  possession  it  Avas,  on  his  giving  bond,  with  condition  to  have  the  same 
forthcoming  at  such  time  and  place  as  the  court  may  require;  or  the  defendant 
against  whom  the  claim  i3  may  release  from  any  attachment  the  whole  of  the  es- 
tate attached  by  giving  bond,  with  condition  to  perform  the  judgment  or  decree  of 
the  court.  The  bond,  in  either  case,  shall  be  taken  by  the  officer  serving  the  at- 
tachment, with  security  payable  to  the  plaintiff,  and  in  a  penalty  in  the  latter  case 
at  least  double  the  amount  or  value  for  which  the  attachment  issued;  and  in  the 
former,  either  double  the  same  or  double  the  value  of  the  property  retained  or  re- 
turned, at  the  option  of  the  person  giving  it. 

§  14. — Every  such  bond  shall  be  returned  by  the  officer  to  and  filed  by  the  clerk 
of  the  court  in  which  the  suit  is  fiending,  or  to  which  the  attachment  is  retiurn- 
able;  and  the  plaintiff  may,  within  thirty  days  after  the  retm-n  thereof,  file  excep- 
tions to  the  same,  or  to  the  sufficiency  of  the  security  therein.  If  such  exception 
be  sustained,  the  court  shall  rule  the  said  officer  to  file  a  good  bond,  with  sufficient 
seciu-ity,  to  be  approved  by  it,  on  or  before  a  certain  day  to  be  fixed  by  the  court. 
If  he  fail  to  do  so,  he  and  his  sureties  in  his  official  bond  shall  be  Liable  to  the 
plaintiff  as  for  a  breach  of  such  bond;  but  the  officer  shall  have  the  same  rights  and 
remedies  against  the  parties  to  any  bonds  so  adjudged  bad  as  if  he  were  a  surety 
for  them. 

§  15.^ — When  any  attachment  is  sued  out,  either  at  law  or  in  equity,  on  such 
affidavit  as  is  mentioned  in  the  second  or  third  section,  although  the  property  or 
estate  attached  be  not  rejjlevied  as  nforesaid,  the  interests  and  profits  thereof, 
pending  the  suit  and  before  judgment  or  decree,  may  be  paid  to  the  defendant,  if 
the  court  deem  it  proper;  and  at  anytime  during  such  period,  the  court,  or  a  judge 
of  a  circuit  court  in  vacation,  may  discharge  the  attachment,  as  to  the  whole  of  the 
estate  of  the  defendant  against  whom  the  claim  is,  on  his  giving  bond,  with  secu- 
rity i:)aj-able  to  the  plaintiff,  in  a  penalty  double  the  value  of  such  estate,  with 
condition,  if  judgment  or  decree  be  rendered  for  the  plaintiff  in  said  suit,  to  pay 
the  said  value,  or  so  much  thereof  as  may  be  necessary  to  satisfy  the  same. 

§  16. — All  property  seized  under  any  attachment  or  enjoining  order  of  a  court 
of  chancery,  and  not  replevied  or  sold  before  judgment  or  decree,  shall  be  kept  in 
the  same  manner  as  similar  jiroi^erty  taken  under  execution;  but  such  as  is  expen- 
sive to  keep,  or  perishable,  may  be  sold  by  order  of  the  com-t,  or  if  it  be  a  circuit 
court  or  the  coiirt  of  chancery  of  the  city  of  Eichmond,  in  vacation  thereof,  by  or- 
der of  the  judge;  such  sale  to  be  made  in  the  same  manner  as  if  it  were  a  sale  under 
execution,  except  that  when  the  claim  for  which  the  attachment  w'as  sued  out  is 
not  yet  payable,  or  the  court  or  judge  sees  other  reason  for  directing  a  credit,  the 


VIRGINIA.  701 

sale  under  this  or  any  other  section  of  this  chapter  shall  be  on  credit  until  the  time 
it  i.^  payable,  or  such  other  time  as  the  court  vr  jud.!,'e  may  direct;  and  for  tbu  iiro- 
ceeds  of  sale,  bond,  with  good  security,  sliall  be  taken,  payable  to  the  officer,  for 
the  benefit  of  the  party  entitled,  and  shall  be  returned  by  the  officer  to  the  court. 

§  17. — V7hen  any  garnishee  shall  appear,  he  shall  be  examined  on  oath.  If  it 
appear,  on  such  examination,  or  by  his  answer  to  a  bill  inrequity,  tliat  at  or  after 
the  service  of  the  attachment  he  was  indebted  to  the  defendant  against  whom  the 
claim  is,  or  had  in  his  possession  or  control  any  goods,  chattels,  monej',  securities, 
or  other  effects  belonging  to  the  said  defendant,  tiie  court  may  order  him  to  pay 
the  amount  so  due  by  him,  and  to  deliver  such  effects  to  such  person  as  it  may  ap- 
point as  receiver;  or  such  garnishee,  with  the  leave  of  the  court,  may  give  bond, 
with  sufEcient  security,  payable  to  such  pei-son,  and  in  such  jjenalty  as  the  court 
shall  prescribe,  with  condition  to  pay  the  amount  due  by  him,  and  have  such  ef- 
fects forthcoming,  at  such  time  and  place  as  the  court  may  thereafter  require: 
Provided,  that  the  judgment  debtor  may  claim  that  the  amount  so  found  due  from 
the  garnishee  shall  be  exempt  from  the  payment  of  the  debt  to  the  judgment  cred- 
itor; and  if  it  shall  appear  that  the  said  judgment  debtor  has  not  claimed  and  held 
as  exempt  the  amount  of  his  homestead  in  other  property  or  thing,  then  the  court 
shall  not  render  a  judgment  for  the  amount  so  found  due  in  favor  tf  the  judgment 
creditor,  except  it  be  for  the  excess  of  the  same  over  and  above*  the  homestead 
exemption. 

§  IS. — If  any  garnishee  summoned  as  aforesaid  fail  to  appear  in  an  attachment 
at  law,  the  court  may  either  compel  him  to  appear,  or  hear  proof  of  any  debt  due 
by  him  to  or  of  effects  in  his  hands  of  the  defendant  in  such  attachment,  and  make 
such  orders  in  relation  thereto  as  if  what  is  so  proved  had  appeared  on  his  exam- 
ination. 

§  19. — AATien  it  is  suggested  by  the  plaintiff  in  any  attachment  at  law,  that  the 
garnishee  has  not  fully  disclosed  the  debts  due  by  him  to  or  effects  in  his  hands  of 
the  defendant  in  such  attachment,  the  court  shall  cause  a  jury  to  be  impanneled, 
without  any  formal  pleading,  to  inquire  as  to  such  debts  and  effects,  and  proceed, 
in  respect  to  any  such  found  by  the  jury,  in  the  same  manner  as  if  they  had  been 
confessed  by  the  garnishee.  If  the  verdict  be  in  favor  of  the  garnishee,  he  shall 
have  judgment  for  his  costs  against  the  jjlaintiff. 

§  20. — When  any  attachment,  except  under  the  third  or  fom-th  section,  is  re- 
turned executed,  an  order  of  publication  shall  be  made  against  the  defendant  against 
whom  the  claim  is,  unless  he  has  been  served  with  a  copy  of  the  attachment  or 
■with  process  in  the  suit  in  which  the  attachment  issued. 

§  21. — Either  of  the  defendants  in  any  such  attachment,  or  any  garnishee,  or 
any  party  to  any  forthcoming  or  replevy  bond  given  as  aforesaid,  cr  the  ofRcer, 
who  may  be  liable  to  the  plaintiff  by  reason  of  such  bond  being  adjudged  bad,  may 
make  defense  to  such  attachment;  but  the  attachment  shall  not  thereby  be  dis- 
charged or  the  property  levied  on  released. 

§  22. — The  right  to  sue  out  any  such  attachment  may  be  contested;  and  when 
the  court  is  of  opinion  that  it  was  issued  on  false  suggestions,  or  without  sufficient 
cause,  judgment  shall  be  entered  that  the  attachment  be  abated.  When  the  at- 
tachment is  projierly  sued  out,  and  the  case  heard  upon  its  merits,  if  the  court  be 
of  opinion  that  the  claim  of  the  plaintiff  is  not  established,  final  judgment  shall  be 
given  for  the  defendant.  In  either  case  he  shall  recover  his  costs,  and  there  shall 
be  an  order  for  the  restoration  to  him  of  the  attached  effects. 

§  23. — If  the  claim  of  the  plaintiff  be  established,  judgment  or  decree  shall  be 
rendered  for  him,  and  the  court  shall  dispose  of  the  specific  property  mentioned  in 
the  second  section  as  may  be  right,  and  order  the  sale  of  any  other  effects  or  real 
estate,  which  shall  not  have  been  previously  replevied  or  sold  under  tliis  chapter, 
and  direct  the  proceeds  of  sale,  and  whatever  else  is  subject  to  the  attachment,  in- 
cluding what  is  embraced  by  such  replevy  or  forthcoming  bond,  to  be  applied  in 
satisfaction  of  the  judgment  or  decree.  But  no  real  estate  shall  be  sold  until  all 
other  property  and  money  subject  to  the  attachment  has  been  exhausted,  and  then 
only  so  much  thereof  as  is  necessary  to  pay  the  judgment  or  decree. 

§  24.  — But  if  the  defendant,  against  whom  the  claim  is,  has  not  appeared  or 
been  served  with  a  copy  of  the  attachment  sixty  days  before  such  decree,  the 
plaintiff  shall  not  have  the  benefit  of  the  pjreceding  section,  unless  or  until  lie  shall 
have  given  bond,  wdth  sufficient  security,  in  such  penalty  as  the  court  shall  ap- 
prove, with  condition  to  perform  such  future  order  as  may  be  made  ujjon  the 
appearance  of  the  said  defendant  and  his  making  defense.  If  the  plaintiff  fail  to 
give  such  bond,  in  a  reasonable  time,  the  court  shall  dispose  of  the  estate  attached, 
or  the  proceeds  thereof,  as  to  it  shall  seem  just. 


70!?  VIRGINIA. 

§  25. — Any  person  may  file  his  petition,  at  any  time  before  the  property  attached 
as  the  estate  of  a  defendant  is  sold,  or  the  proceeds  of  sale  paid  to  the  plaintiff  un- 
der the  decree  or  judgment,  disputing  the  validity  of  the  plaintiff's  attachment 
thereon,  or  stating  a  claim  thereto,  or  an  interest  in  or  lien  on  the  same,  under  any 
other  attachment  or  other\vise,  and. its  nature,  and  upon  giving  security  for  costs, 
the  court,  without  any  other  pleading,  shall  impannel  a  jury  to  inqidre  into  such 
claim,  and  if  it  be  found  that  the  petitioner  has  title  to,  or  a  lien  on,  or  any  inter- 
est in,  such  property  or  its  proceeds,  the  court  shall  make  such  order  as  is  necessary 
to  protect  his  rights;  the  costs  of  which  inquiry  shall  be  paid  by  either  party,  at 
the  discretion  of  the  court. 

§  26.  — The  attachment  first  served  on  the  same  property,  or  on  the  person  hav- 
ing such  property  in  possession,  shall  have  priority  of  lien. 

§  27. — If  a  defendant,  against  whom,  on  publication,  judgment  or  decree  is  ren- 
dered under  any  such  attachment,  or  his  personal  representative,  shall  return  to  or 
api:>ear  openly  in  this  state,  he  may,  within  one  year  after  a  copy  of  such  judgment 
or  decree  shall  be  served  on  him  at  the  instance  of  the  plaintiff,  or  within  five 
years  from  the  date  of  the  decree  or  judgment,  if  he  be  not  so  served,  petition  to 
nave  the  proceedings  reheard.  On  giving  security  for  costs,  he  shall  be  admitted 
to  make  defense  against  such  judgment  or  decree,  as  if  he  had  appeared  in  the  case 
before  the  same  was  rendered,  except  that  the  title  of  any  bona  fide  fiurchaser  to 
any  property,  real  or  personal,  sold  under  such  attachment,  shall  not  be  brought 
in  question  or  impeached.  But  this  section  shall  not  apply  to  any  case  in  which 
the  petitioner,  or  his  decedent,  was  served  with  a  copy  of  the  attachment,  or  with 
process  in  the  suit  wherein  it  issued,  more  than  sixty  days  before  the  date  of  the 
judgment  or  decree,  or  to  any  case  in  which  he  appeared  and  made  defense. 

§  28. — On  any  rehearing  or  new  trial  had  under  the  preceding  section,  the  court 
may  order  the  plaintiff  in  the  original  suit  to  restore  any  money,  paid  to  him  under 
Buch  judgment  or  decree,  to  the  heir  or  representative  of  such  defendant,  as  the 
same  may  be,  the  proceeds  of  real  or  personal  estate,  and  enter  a  judgment  or  de- 
cree therefor  against  him,  or  it  may  confirm  the  former  judgment  or  decree;  and  in 
either  case  adjudge  the  costs  to  the  jjre vailing  party. 

§  29. — Any  creditor  whose  claim,  whether  legal  or  equitable,  does  not  exceed 
twenty  dollars,  exclusive  of  interest,  upon  complaint  on  oath  in  the  manner  pre- 
Bcribed  by  the  first,  second,  third  and  seventh  sections,  as  the  case  may  be,  may 
obtain  from  any  justice  of  any  county  or  corporation  in  which  any  j)roperty  or  ef- 
fects of  the  defendant  may  be,  or  in  which  any  person  indebted  to  him  may  reside, 
an  attachment  against  the  estate  of  such  defendant,  directed  to  the  sheriff  or  ser- 
geant, or  any  constable  of  his  county  or  corporation,  and  returnable  before  any 
justice  thereof;  and  thereupon  such  proceedings  may  be  had  before  the  justice  as 
would,  if  the  claim  exceeded  twenty  dollars,  be  had  before  a  court,  except  that  the 
proceedings  shall  in  all  cases  be  without  any  formal  pleadings,  and  an  order  of  pub- 
lication need  not  be  published  in  any  newspaper,  and  the  justice  shall  try  and  de- 
cide all  questions  ■without  a  jury.  All  bonds  taken  under  such  attachment  shall 
be  filed  with  the  clerk  of  the  court  of  the  county  to  which  the  justice  belongs. 

§  30. — If,  upon  defense  being  made,  in  any  case  in  which  property  is  seized  un- 
der an  attachment,  that  the  attachment  was  sued  out  without  sufficient  cause,  it 
be  found,  either  by  the  comi;  or  by  the  jury,  if  one  be  impanneled,  that  the  defense 
is  well  founded,  judgment  may  be  entered  for  the  defendant  against  the  plaintiff 
for  the  damages  sustained  by  the  defendant  by  reason  thereof. 

§31. — Where  judgment  or  decree  in  favor  of  the  plaintiff  is  rendered  in  any 
case  in  which  an  attachment  is  sued  out,  and  on  appeal  therefrom  an  appeal  bond 
is  given,  with  condition  to  prosecute  the  appeal  mth  effect  or  pay  the  debt,  inter- 
est, costs,  and  damages,  as  well  as  the  costs  of  the  appeal,  the  oflicer  in  whose  cus- 
tody any  attached  property  may  be  shall  deliver  the  same  to  the  owner  thereof. 

§  32.— Any  bond  authorized  or  required  by  any  section  of  this  chapter  may  be 
given  either  by  the  party  himself  or  by  any  other  person. 


Corporation  garnishee — Chap.  56,  p.  543,  sec.  32-34. 
Court  may  order  sale  of  goods — Chap.  134,  p.  971,  sec.  15. 
Actions  for  wrongful  attachments — Chap.  145,  p.  995,  sec.  3. 
Exemptions— Chap.  49,  p.  176,  sees.  32,  33;  and  Stats.  1877-8,  p.  239^ 


WASHINGTON.  703 

WASHINGTON. 

[General  Laws;  Statutes  1885-6,  p.  39.] 


§  1. — The  plaintiff  at  the  time  of  commencing  an  action,  or  at  any  time  after- 
ward before  judgment,  may  have  the  property  of  the  defendant,  or  that  of  any  one 
or  more  of  several  defendants,  attached  in  the  manner  hereinafter  prescribed,  as 
Becurity  for  the  satisfaction  of  such  judgment  as  he  may  recover. 

§  2. — The  writ  of  attachment  shall  be  issued  by  the  clerk  of  the  court  in  which 
the  action,  is  pending ;  but  before  any  such  writ  of  attachment  shall  issue,  the 
plaintiff,  or  some  one  in  his  behalf,  shall  make  and  file  with  such  clerk  an  afiidavit 
showing  that  the  defendant  is  indebted  to  the  plaintiff  (specifying  the  amount  of 
Buch  indebtedness  over  and  above  all  just  credits  and  offsets),  and  that  the  attach- 
ment is  not  sought,  and  the  action  is  not  prosecuted  to  hinder,  delay  or  defraud 
any  creditor  of  the  defendant;  and  either, 

1.  That  the  defendant  is  a  foreign  corporation;  or, 

2.  That  the  defendant  is  not  a  resident  of  this  territory;  or, 

3.  That  the  defendant  conceals  himself  so  that  the  ordinary  process  of  law  can- 
not be  served  upon  him;  or, 

4.  That  the  defendant  has  absconded  or  absented  himself  from  his  usual  place 
of  abode  in  this  territory,  so  that  the  ordinary  process  of  law  cannot  be  served 
upon  him;  or, 

5.  That  the  defendant  has  removed  or  is  about  to  remove  any  of  his  property 
from  this  territory  with  intent  to  delay  or  defraud  his  creditors;  or, 

6.  That  the  defendant  has  assigned,  secreted  or  disposed  of,  or  is  about  to  assign, 
secrete  or  dispose  of,  any  of  his  property  with  intent  to  delay  or  defraud  his  cred- 
itors; or, 

7.  That  the  defendant  is  about  to  convert  his  property,  or  a  part  thereof,  into 
money  for  the  purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or, 

8.  That  the  defendant  has  been  guilty  of  a  fraud  in  contracting  the  debt  or 
incurring  the  obligation  for  which  the  action  is  brought;  or, 

9.  That  the  damages  for  which  the  action  is  brought  are  for  injuries  arising 
from  the  commission  of  some  felony,  or  for  the  seduction  of  some  female. 

§  3. — ^An  action  may  be  commenced  and  the  property  of  a  debtor  may  be  at- 
tached previous  to  the  time  when  the  debt  becomes  due,  when  nothing  but  time  is 
wanting  to  fix  an  absolute  indebtedness,  and  when  the  affidavit,  in  addition  to  that 
fact,  states: 

1.  That  the  defendant  is  about  to  dispose  of  his  property  with  intent  to  defraud 
his  creditors;  or, 

2.  That  the  defendant  is  about  to  remove  from  the  territory,  and  refuses  to 
make  any  arrangements  for  securing  the  payment  of  the  debt  when  it  falls  due, 
and  which  contemplated  removal  was  not  known  to  the  plaintiff  at  the  time  the 
debt  was  contracted;  or, 

3.  That  the  defendant  has  disposed  of  his  property,  in  whole  or  in  part,  with 
intent  to  defraud  his  creditors;  or, 

4.  That  the  debt  was  incurred  for  property  obtained  under  false  pretenses. 

§  4. — If  the  debt  or  demand  for  which  the  attachment  is  sued  out  is  not  due  at 
the  time  of  the  commencement  of  the  action,  the  defendant  is  not  required  to  file 
any  pleadings  until  the  maturity  of  such  debt  or  demand,  but  he  may,  in  his  dis- 
cretion, do  so,  and  go  to  trial  as  early  as  the  cause  is  reached. 

§  5. — No  final  judgment  shall  be  rendered  in  such  action,  unless  the  party  con- 
sents, as  in  the  last  section,  until  the  debt  or  demand  upon  which  it  is  based 
becomes  due.  But  property  of  a  perishable  nature  may  be  sold  as  in  other  cases 
of  attachment. 

§  6. — Before  the  writ  of  attachment  shall  issue,  the  plaintiff,  or  some  one  in  his 
behalf,  shall  execute  and  file  with  the  clerk  a  bond  or  undertaking,  with  two  or 
more  sureties,  in  a  sum  in  no  case  less  than  three  hundred  (300)  dollars  in  the 
district  court,  nor  less  than  fifty  (uO)  dollars  in  a  justice's  coiirt,  and  double  the 


704  WASniNGTON". 

• 

amount  for  whicli  plaintiff  demands  judgment,  conditioned  that  the  plaintiff  will 
prosecute  his  action  without  delay,  and  will  pay  all  costs  that  may  be  adjudged  to 
the  defendant,  and  all  damages  which  he  may  sustain  by  reason  of  the  attachment, 
not  exceeding  the  amount  specified  in  such  bond  or  undertaking  as  the  penalty 
thereof,  should  the  same  be  wrongfully,  oppressively  or  maliciously  sued  out. 
With  said  bond  or  undertaking  there  shall  also  be  filed  the  affidavit  of  the  sureties, 
from  which  it  must  appear  that  such  sureties  are  qualified,  and  that  they  are,  taken 
together,  worth  the  sum  specified  in  the  bond  or  undertaking,  over  and  above  all 
debts  and  liabilities  and  property  exempt  from  execution.  No  person  not  qualified 
to  become  bail  ujion  arrest  shall  be  qualified  to  become  surety  upon  a  bond  or 
imdertaking  for  an  attachment. 

§  7.  —The  defendant  may,  at  any  time  before  judgment,  move  the  court  or 
judge  for  additional  security  on  the  part  of  the  plaintiff,  and  if,  on  such  motion, 
the  court  or  judge  is  satisfied  that  the  surety  in  the  plaintiff 's  bond  has  removed 
from  this  territory,  or  is  not  sufficient,  the  attachment  may  be  vacated,  and  resti- 
tution directed  of  any  property  taken  under  it,  unless  in  a  reasonable  time,  to  be 
fixed  by  the  court  or  judge,  fxirther  security  is  given  by  the  plaintiff  in  form  as 
provided  in  section  six  of  this  act. 

§  8. — Id  an  action  on  such  bond  the  plaintiff  therein  may  recover,  if  he  shows 
that  the  attachment  was  wTongfully  sued  out,  and  that  there  was  no  reasonable 
cause  to  believe  the  ground  upon  which  the  same  was  issued  to  be  true,  the  actual 
damages  sustained  and  reasonable  attorney's  fees,  to  be  fixed  by  the  court;  and  if 
it  be  shown  that  such  attachment  was  sued  out  maliciously,  he  may  recover  exem- 
plary damages,  nor  need  he  wait  until  the  principal  suit  is  determined  before  suing 
on  the  bond. 

§  9. — The  writ  of  attachment  shall  be  directed  to  the  sheriff  of  any  county  in 
which  property  of  the  defendant  may  be,  and  shall  require  him  to  attach  and 
safely  keep  the  property  of  such  defendant  within  his  county,  to  the  requisite 
amount;  which  shall  be  stated  in  conformity  ■with  the  affidavit.  The  sheriff  shall 
in  all  cases  attach  the  amount  of  property  directed,  if  sufficient  not  exempt  from 
execution  be  found  in  his  county,  giving  that  in  which  the  defendant  has  a  legal 
and  unquestionable  title  a  preference  over  that  in  which  his  title  is  doubtful  or  only 
equitable,  and  he  shall,  as  nearly  as  the  circumstances  of  the  case  will  permit,  levy 
upon  projjerty  fifty  per  cent  greater  in  valuation  than  the  amount  which  plaintiff 
in  his  affidavit  claims  to  be  due.  "When  property  is  seized  on  attachment,  the 
court  may  allow  to  the  officer  having  charge  thereof  such  compensation  for  his 
trouble  and  expenses  in  keeping  the  same  as  shall  be  reasonable  and  just. 

§  10. — Writs  of  attachment  may  be  issued  from  the  district  courts  to  different 
counties,  and  several  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same 
time,  or  in  succession  and  subsequently,  until  sufficient  property  has  been  attached; 
but  only  those  executed  shall  be  attached  in  the  costs,  unless  otherwise  ordered  by 
the  coiu-t,  and  if  more  i^roperty  is  attached  in  the  aggregate  than  the  plaintiff  is 
entitled  to  have  held,  the  surplus  must  be  abandoned  and  the  plaintiff  pay  all 
costs  incurred  in  relation  to  such  surplus.  After  the  first  writ  shall  have  issued,  it 
shall  not  be  necessary  for  the  plaintiff  to  file  any  further  affidavit  or  bond,  but  he 
shall  be  entitled  to  as  many  writs  as  may  be  necessary  to  secure  the  amount 
claimed. 

§11. — Where  there  are  several  attachments  against  the  same  defendant,  they 
shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff. 

§  12. — If,  after  an  attachment  has  been  placed  in  the  hands  of  the  sheriff,  any 
property  of  the  defendant  is  moved  from  the  county,  the  sheriff  may  pursue  and 
attach  the  same  in  an  adjoining  county,  within  twenty-four  hours  after  removal. 

§  13.  The  sheriff  to  whom  the  writ  is  directed  and  delivered,  must  execute  the 
same  without  delay  as  follows: 

1.  Real  property  shall  be  attached  by  filing  a  copy  of  the  writ,  together  with  a 
description  of  the  property  attached,  w4th  the  county  auditor  of  the  coimty  in 
which  the  attached  real  estate  is  situated. 

2.  Personal  property,  capable  of  manual  delivery,  shall  be  attached  by  taking 
into  custody. 

3.  Stock  or  shares,  or  interest  in  stock  or  shares,  of  any  corporation,  association 
or  company,  shall  be  attached  by  leaving  with  the  president,  or  other  head  of  the 
same,  or  the  secretary,  cashier  or  managing  agent  thereof,  a  copy  of  the  writ,  and 
a  notice  stating  that  the  stock  or  interest  of  the  defendant  is  attached  in  pursu- 
ance of  such  ^\•rit. 

4.  Debts  and  credits,  and  other  personal  property,  not  capable  of  manual  deliv- 
ery, shall  be  attached  by  leaving  with  the  person  owing  such  debts,  or  having  in 


WASHINGTON.  705 

his  possession,  or  under  his  control,  such  credits,  or  other  personal  property,  a  copy 
of  the  writ,  and  a  notice  in  "»\Titing  that  the  debts  owing  by  him  to  the  defendant, 
or  the  credits  and  other  personal  property  in  his  possession,  or  under  his  control, 
are  attached  in  pursuance  of  such  WTit. 

§  14. — "Whenever  it  appears  by  the  affidavit  of  the  plaintiff  or  by  the  return 
cf  the  attachment  that  no  property  is  known  to  the  plaintiff  or  officer  on  which 
the  attachment  can  be  executed,  or  not  enough  to  satisfy  the  plaintiff 's  claim, 
and  being  shown  to  the  court  or  judge  by  affidavit  that  the  defendant  has  prop- 
erty within  the  territory  not  exem^Jt,  the  defendant  may  be  required  liy  such 
court  or  judge  to  attend  before  the  court  or  judge,  or  referee  appointed  by  tho 
court  or  judge,  and  give  information  on  oath  respecting  the  same. 

§  15.— The  court  before  whom  the  action  is  pending,  or  the  judge  thereof  in 
vacation,  maj^  at  any  time  appoint  a  receiver  to  take  possession  of  property  attached 
under  the  provisions  of  this  act,  and  to  collect,  manage,  and  control  the  same,  and 
pay  over  the  proceeds  according  to  the  nature  of  the  i;iroj)erty  and  the  exigency  of 
the  case. 

§  16. — If  any  of  the  property  attached  be  perishable,  or  in  danger  of  serious  and 
immediate  waste  or  decay,  the  sheriff  shall  sell  the  same  in  the  manner  in  which 
such  property  is  sold  on  execution.  Whenever  it  shall  be  made  to  appear  satis- 
factorily to  the  coiu-t  or  judge  that  the  interest  of  the  parties  to  the  action  will  be 
subserved  by  a  sale  of  any  attached  property,  the  court  or  judge  may  order  such 
property  to  be  sold  in  the  same  manner  as  like  property  is  sold  under  execution. 
Such  order  shall  be  made  only  upon  notice  to  the  adverse  party  or  his  attorney  in 
case  such  party  shall  have  been  personally  served  with  a  summons  in  the  action. 
Debts  and  credits  attached  may  be  collected  by  the  sheriff,  if  the  same  can  be 
done  without  suit,  and  the  sheriff's  receipt  shall  be  a  sufficient  discharge  for  the 
amount  paid. 

§  17. — All  moneys  received  by  the  sheriff  under  the  provisions  of  this  act,  and 
all  other  attached  property,  shall  be  retained  by  him  to  answer  any  judgment  that 
may  be  recovered  in  the  action  unless  sooner  subjected  to  execution  ui^on  another 
judgment  recovered  previous  to  the  issuing  of  the  attachment. 

§  18. — All  persons  having  in  their  possession  or  under  their  control  any  credits 
or  other  jiersonal  property  belonging  to  the  defendant,  or  owing  any  debts  to  the 
defendant  at  the  time  of  the  service  upon  them  of  a  copy  of  the  writ  and  notice,  as 
provided  in  subdivision  iovx  of  section  thirteen  of  this  act,  shall  be,  unless  such 
property  be  delivered  up  or  transferred,  or  such  debts  be  paid  to  the  sheriff,  liable 
to  the  plaintiff  for  the  amount  of  such  credits,  property  or  debts,  until  the  attach- 
ment be  discharged,  or  any  judginent  recovered  by  him  be  satisfied. 

§  19. — A  sheriff  or  constable  may  be  garnished  for  money  of  the  defendant  in 
his  hands.  8o  may  a  judgment  debtor  of  the  defendant  when  the  judcjTaeut  l.ft.3 
not  been  previously  assigned  on  the  record  or  by  writing  filed  in  the  office  of  the 
clerk,  and  by  him  minuted  as  an  assignment  on  the  margin  of  the  execution  docket, 
and  also  an  executor  or  administrator  may  be  garnished  for  money  due  from  the 
decedent  to  the  defendant. 

§  20. — When  property  to  be  attached  is  a  fund  in  comrt,  the  execution  of  a  writ 
of  attachment  shall  be  by  leaving  with  the  clerk  of  the  court  a  copy  thereof,  with 
notice  in  %vriting  specifying  the  fund. 

§  21. — The  sheriff  shall  make  a  full  inventory  of  the  property  attached  and 
return  the  same  with  the  writ.  To  enable  him  to  make  such  retiu-n  as  to  debts 
and  credits  attached,  he  shall  request  at  the  time  of  service  the  party  owing  the 
debt  or  having  the  credit  to  give  him  a  memorandum  in  \vriting  stating  the  amount 
and  description  of  each,  and  if  such  memorandum  be  refused,  he  shall  retm-n  the 
fact  of  the  refusal  with  the  writ.  The  party  refusing  to  give  the  memorandum 
may  be  required  to  attend  before  the  court  or  judge,  or  a  referee  ajipointed  by  the 
court  or  judge,  and  answer  under  oath  respecting  such  debts  or  credits,  or  other 
property.  If,  when  duly  summoned,  he  fail  to  appear  and  answer  the  interroga- 
tories propounded  to  him,  without  sufficient  excuse  for  his  delinquency,  he  shall  be 
presumed  to  be  indebted  to  the  defendant  to  the  full  amount  of  the  plaintiff's  de- 
mand. But  for  a  mere  failure  to  appear  he  is  not  liable  to  pay  the  amount  of 
plaintiff's  jvidgment  until  he  has  had  an  opportunity  to  show  cause  against  the 
issuing  of  an  execution. 

§  22. — If  upon  the  examination  of  such  garnishee,  as  provided  in  the  last  sec- 
tion, it  appears  that  the  garnishee  was  indebted  to  the  defendant,  or  had  any 
credits  or  other  property  of  the  defendant  in  his  possession  or  imder  his  control  at 
the  time  of  the  service  of  the  co^iy  of  the  writ  and  notice  upon  him,  as  herein- 

II  ATTACaMENI— 20. 


706  WASHINGTON. 

before  provided,  or  at  any  time  subsequent  thereto,  he  is  liable  to  the  plaintiff  in 
case  judgment  is  finally  recovered  by  him  to  the  full  amount  of  that  judgment,  or 
to  the  amount  of  such  indebtedness,  and  of  the  credits  or  other  personal  property 
held  by  him,  and  a  judgment  shall  be  entered  up  against  him  accordingly. 

§  23. — If  the  debt  of  the  garnishee  to  the  defendant  is  not  due,  execution  shall 
be  suspended  tmtil  its  maturity. 

§  24. — The  garnishee  shall  not  be  made  liable  on  a  debt  due  by  negotiable  paper, 
unless  such  paper  is  delivered,  or  the  garnishee  completely  exonerated  or  indemni- 
fied from  all  liability  thereon  after  he  may  have  satisfied  the  judgment. 

§  25.  — If  judgment  be  recovered  by  the  plaintiff,  the  sheriff  shall  satisfy  the 
eame  out  of  the  property  attached  by  him  which  has  not  been  delivered  to  the 
defendant  or  claimant,  as  in  this  act  provided,  or  subjected  to  execution  on 
another  judgment  recovered  previous  to  the  issuing  of  the  attachment,  if  it  be 
sufficient  for  that  purpose: 

1.  By  appljdng  on  the  execution  issued  on  said  judgment  the  proceeds  of  aU 
Bales  of  perishable  or  other  property  sold  by  him,  or  of  any  debts  or  credits  col- 
lected by  him,  or  so  much  as  shall  be  necessary  to  satisfy  the  j'udgment. 

2.  If  any  balance  remain  due,  he  shall  sell  under  the  execution  so  much  of  the 
propertj^  real  or  personal,  as  may  be  necessary  to  satisfy  the  balance,  if  enough  for 
that  purpose  remain  in  his  hands. 

Notice  of  the  sale  shall  be  given,  and  the  sale  conducted  as  in  other  cases  of 
sales  on  execution. 

§  26. — If,  after  selling  all  the  property  attached  by  him  remaining  in  his  hands, 
and  applying  the  proceeds,  together  with  the  proceeds  of  any  debts  or  credits  col- 
lected by  him,  deducting  his  fees,  to  the  payment  of  the  judgnaent,  any  balance 
shall  remain  due,  the  sheriff  shall  proceed  to  collect  such  balance,  as  upon  an  exe- 
cution in  other  cases.  Whenever  the  judgment  shall  have  been  paid,  the  sheriff, 
upon  reasonable  demand,  shall  deliver  over  to  the  defendant  the  attached  property 
remaining  in  his  hands,  and  any  proceeds  of  the  property  attached  imappUed  on 
the  judgment. 

§  27. — If  the  execution  be  returned  unsatisfied,  in  whole  or  in  part,  the  plaintiff 
may  proceed  as  in  other  cases  upon  the  return  of  an  execution. 

§  28. — If  the  defendant  recover  judgment  against  the  plaintiff,  all  the  proceeds 
of  sales  and  money  collected  by  the  sheriff,  and  all  the  property  attached  remain- 
ing in  the  sheriff's  hands,  shall  be  delivered  to  the  defendant,  or  his  agent.  The 
order  of  attachment  shall  be  discharged,  and  the  property  released  therefrom. 

§  29.  If  the  defendant,  at  any  time  before  judgment,  causes  a  bond  to  be  exe- 
cuted to  the  plaintiff  with  sufficient  sureties,  to  be  approved  by  the  officer  having 
the  attachment,  or  after  the  return  thereof  by  the  clerk,  to  the  effect  that  he  will 
perform  the  judgment  of  the  court,  the  attachment  shall  be  discharged  and  resti- 
tution made  of  property  taken  or  proceeds  thereof.  The  execution  of  such  bond 
shall  be  deemed  an  appearance  of  such  defendant  to  the  action. 

§  30. —Such  bond  shall  be  part  of  the  record,  and,  if  judgment  go  against  the 
defendant,  the  same  shall  be  entered  against  him  and  siu-eties. 

§  31. — The  defendant  may  at  any  time  after  he  has  appeared  in  the  action,  either 
before  or  after  the  release  of  the  attached  property,  or  before  any  attachment  shall 
have  been  actually  levied,  apply  on  motion,  upon  reasonable  notice  to  the  plaintiff, 
to  the  court  in  which  the  action  is  brought,  or  to  the  judge  thereof,  that  the  writ 
of  attachment  be  discharged,  on  the  grovmd  that  the  same  was  improperly  or  irreg- 
ularly issued. 

§  32. — If  the  motion  be  made  upon  aflBdavits  upon  the  part  of  the  defendant, 
but  not  otherwise,  the  plaintiff  may  oppose  the  same  by  aflidavits,  or  other  evi- 
dence, in  addition  to  those  on  which  the  attachment  was  issued. 

§  33. — If  upon  application  it  satisfactorily  appears  that  the  writ  of  attachment 
was  improperly  or  irregularly  issued,  it  must  be  discharged. 

§  34.  — The  sheriff  must  return  the  writ  of  attachment  with  the  summons,  if 
issued  at  the  same  time;  otherwise  within  twenty  days  after  its  receipt,  with  a 
certificate  of  his  proceedings  indorsed  thereon  or  attached  thereto;  and  whenever 
an  order  has  been  made  discharging  or  releasing  an  attachment  upon  real  prop- 
erty, a  certified  copy  of  such  order  may  be  filed  in  the  offices  of  the  county 
auditors  in  which  the  notices  of  attachment  have  been  filed,  and  be  indexed  in 
like  manner. 


I 


WASHINGTON.  707 

« 

§  35. — This  act  shall  be  liberally  construed,  and  the  plaintiff,  at  any  time  when 
objection  is  made  thereto,  shall  be  permitted  to  amend  any  defect  in  the  complaint, 
affidavit,  bond,  writ  or  other  proceeding,  and  no  attachment  shall  be  quashed  or 
dismissed,  or  the  property  attached  released,  if  the  defect  in  any  of  the  proceedings 
has  been  or  can  be  amended  so  as  to  show  that  a  legal  cause  for  the  attachment 
existed  at  the  time  it  was  issued,  and  the  court  shall  give  the  plaintiff  a  reasonable 
time  to  perfect  such  defective  proceedings.  The  causes  for  attachment  shall  not 
be  stated  in  the  alternative. 

§  36. — The  judge  of  any  district  court  shall  have  power  to  make  every  order  in 
vacation  which,  by  the  provisions  of  this  act,  may  be  made  by  the  coui-t  in  term 
time. 

§  37. — The  word  "sheriff,"  as  used  in  this  act,  is  meant  to  apply  to  constables, 
when  the  proceedings  are  in  a  justice's  court,  and  when  the  proceedings  are  in  a 
justice's  court,  the  justice  is  to  be  regarded  as  the  clerk  of  the  court  for  all  pur- 
poses herein  contemplated:  Provided,  that  nothing  contained  in  this  act  shall  be 
construed  to  confer  upon  a  justice  of  the  peace  power  to  issue  a  vnit  of  attachment 
to  be  served  out  of  the  county  in  which  such  justice  shall  have  his  office,  or  to 
confer  upon  a  sheriff,  constable  or  other  officer,  power  or  authority  to  serve  a  writ 
of  attachment  issued  out  of  a  justice's  comrt  beyond  the  limits  of  the  county  in  which 
such  justice  shall  have  his  office,  except  in  cases  provided  for  in  section  twelve  of 
this  act:  And  provided  further,  that  nothing  contained  in  this  act  shall  be  con- 
strued or  held  to  authorize  the  attachment  of  real  estate,  or  of  any  interest  therein, 
under  a  wi-it  of  attachment  issued  out  of  any  justice's  court. 

§  38. — That  chapter  twelve  of  the  Code  of  Washington  Territory,  and  sections 
one  thousand  seven  hundred  and  twenty-six  to  one  thousand  seven  hundred  and 
forty -five,  each  included,  of  the  Code  .of  Washington  Territory,  and  an  act  entitled 
"  an  act  to  amend  chapter  twelve,  section  one  hundred  and  seventy-six,  of  the  Code 
of  Washington,"  approved  November  28,  1883,  and  all  other  laws  heretofore  en- 
acted upon  any  subject-matter  contained  in  this  act,  be  and  the  same  are  hereby 
repealed:  Provided,  that  rights  acquired  ia  actions  now  pending  under  existing 
laws  shall  not  be  affected  by  anything  herein  contained. 

§  39.— This  act  shall  take  effect  and  be  in  force  from  and  after  its  approval  by 
the  governor.     [Approved  February  3, 1886. 


708  WEST   VIRGINIA. 


WEST  VIRGINIA. 

[Amended  Code,  1884] 


CHAPTER  CVL 

[Acts  1882,  p.  513.] 
ATTACHMEXT — WHEN  AND  HOW  StTEB  OUT. 

§  1. — When  any  action  at  law  or  suit  in  equity  is  about  to  be  or  is  instituted 
for  the  recovery  of  any  claim  or  debt  arising  out  of  contract,  or  to  recover  dam- 
ages for  any  -^vrong,  the  plaintiff,  at  the  commencement  of  the  action  or  suit,  or  at 
any  time  thereafter,  and  before  judgment,  may  have  an  order  of  attachment 
against  the  property  of  the  defendant,  on  filing  with  the  clerk  of  the  court  in  which 
such  action  or  suit  is  about  tobeoris  brought,  his  o\vn  affidavit,  or  that  of  some,  cred- 
ible person,  stating  the  nature  of  the  plaintiff's  claim,  and  the  amount  at  the  least, 
which  the  affiant  believes  the  plaintiff  is  justly  entitled  to  recover  in  the  action; 
and  also,  that  the  affiant  believes  that  some  one  or  more  of  the  following  grounds 
exist  for  such  attachment: 

First.  That  the  defendant,  or  one  of  the  defendants,  is  a  foreign  corporation, 
or  is  a  non-resident  of  this  state;  or, 

Second.  Has  left  or  is  about  to  leave  the  state,  with  intent  to  defraud  his  cred- 
itors; or. 

Third.  So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or, 

Fourth.  Is  removing,  or  is  about  to  remove  his  property,  or  a  material  part 
thereof,  out  of  this  state,  with  intent  to  defraud  his  creditors;  or, 

Fifth.^  Is  converting,  or  is  about  to  convert,  his  property,  or  a  material  part 
thereof,  into  money  or  securities,  with  intent  to  defraud  his  creditors;  or. 

Sixth.  Has  assigned  or  disposed  of  his  property,  or  a  material  part  thereof,  or 
is  about  to  do  so,  with  intent  to  defraud  his  creditors;  or. 

Seventh.  Has  property  or  rights  in  action  which  he  conceals;  or, 

Eiglith.  Fraudulently  contracted  the  debt  or  incurred  the  liability  for  which  the 
action  or  suit  is  about  to  be  or  is  brought. 

And  unless  the  attachment  is  sued  out  upon  the  first  of  such  grovmds,  the  affi- 
ant shall  also  state  in  his  affidavit,  the  material  facts  relied  on  by  him  to  show  the 
existence  of  the  grounds  upon  which  his  application  for  the  attachment  is  based. 
The  order  shall  be  issued  by  the  clerk,  and  may  be  in  form  or  effect  as  follows: 

A B ,  plaintiff,    \ 

vs.  \  Order  of  attachment. 

C D— — — ,  defendant,  j 

The  plaintiff  in  this  case  having  filed  his  affidavit  as  required  by  law,  the 

sheriff  of  the  county  of • — ,  or  a  constable  of  any  district  therein,  to  whom 

this  order  may  come,  is  required,  in  the  name  of  the  State  of  West  Virginia,  to 

attach   the  estate  of  the  defendant,  C D ,  sufficient  to  pay  the  sum 

of  (the  amount  affiant  states  the  plaintiff  is   justly  entitled  to  recover), 

and  the  costs  of  this  suit,  and  make  return  of  his  proceedings  under  this  order  to 

the  next  term  of  the  court  (or  at  rules  to  be  held  for  the  court, 

on  the day  of ,  naming  in  either  case  the  court  in  which  the  action  is 

brought). 

Witness  E F ,  clerk  of  said  court,  this day  of . 

E F ,  Clerk. 


And  such  attachment  may  be  sued  out  in  a  comi;  of  equity  for  a  debt  or  claim 
legal  or  equitable  not  due,  upon  any  of  the  grounds  aforesaid,  but  the  affidavit  in 
such  case  must  show  when  it  ^vill  become  due:  Provided,  that  an  attachment  shall 
not  be  sued  out  against  a  foreign  corporation  for  a  debt  not  due  upon  the  ground 
alone  that  it  is  a  foreign  corporation,  nor  against  a  non-resident  defendant  for  a 
del)t  not  due  imless  the  affiant  show  by  his  affidavit  that  he  was  a  resident  of  this 
state  when  the  debt  was  contracted,  and  that  the  plaiatiff  believed  he  would 
remain  a  resident  of  this  state  at  the  time  he  gave  him  credit. 


WEST   VIRGINIA.  709 

§  2. — If  the  plaintiff  at  the  time  of  suing  out  his  attachment,  or  afterward,  before 
jud.Ljment,  give  the  bond  and  security  required  by  the  sixth  section  of  thia  chapter, 
such  order  may  be  in  form  or  effect  as  follows: 

A B ,  plaintiff,     ] 

vs.  y  Order  of  Attachment. 

C D- ,  defendant,  j 

The  plaintiff  in  this  case  having  filed  the  necessary  affidavit  and  bond,  the 

sheriff  of  the  county  of ,  or  a  constable  of  any  district  therein,  to  whom 

this  order  shall  come,  is  herel)y  required,  in  the  name  of  the  state  of  West  Vir- 
ginia, to  attarli  and  take  into  his  possession  the  estate  of  the  defendant,  C • 

D-; — ;— ,  sufficient  to  pay  the  sum  of dollars  (the  amount  affiant  .states  the 

plaintiff  is  justly  entitled  to  recover),  and  the  costs  of  this  suit,  and  make  return 

of  his  proceedings  under  this  order  to  the  next  term  of  the court  (or  at 

the  rules  to  be  held  fur  the court  on  the day  of ,  naming  la 

either  case  the  court  in  which  the  action  is  brought). 

Witness:  E F ,  clerk  of  said  court,  this day  of  ■ 


F ,  Clerk. 


An  order  of  attachment  under  this  or  the  preceding  section  may  be  isued  and 
directed  to  the  sheriff  or  a  co?.stable  in  any  county  of  this  state;  and  several  such 
orders  may  be  issued  and  delivered  to  different  officers  at  the  same  or  different 
times. 

§  3. — [See  ch.  50,  sec.  19.5.]  On  complaint  by  any  lessor  or  his  agent  to  a  jus- 
tice, that  any  person  liable  for  rent  intends  to  remove,  or  is  removing,  or  has 
within  thirty  days  removed  his  effects  from  the  leased  premises,  if  such  lessor,  or 
his  agent,  make  oath  to  the  truth  of  such  complaint  to  the  best  of  his  belief,  and 
to  the  rent  which  is  reserved  (whether  in  money  or  other  thing),  and  will  be  pay- 
able in  one  year,  and  the  time  or  times  when  it  will  be  payable,  and  also  make 
oath  either  that  there  is  not,  or  he  believes,  unless  an  attachment  issues,  there  will 
not  be,  left  on  such  premises  property  liable  to  distress  sufficient  to  satisfy  the  rent 
so  to  become  paj'able,  such  justice  shall,  if  the  rent  so  claimed  exceed  fifty  dol- 
lars, exclusive  of  interest,  issue  an  order  of  attachment  for  the  said  rent  against 
the  personal  estate  of  the  person  so  liable  therefor,  returnable  to  the  next  term  of 
the  circuit  court  thereafter.  The  order  of  attachment  in  such  case  shall  be  m  form 
or  effect  as  follows: 
A B ,  plaintiff,     ^  District  of , County,  to  wit; 


J 


C D ,  defendant.  )    Order  of  Attachment. 

The  aliove  named  plaintiff  having  filed  with  me  the  affidavit  required  by  law, 

the  sheriff  of  the  county  of or  any  constable  therein  to  whom  this  order 

may  come,  is  hereby  required,  in  the  name  of  the  state  of  West  Virginia,  to 

attach  and  take  into  his  possession  the  personal  estate  of  the  defendant,  C 

D ,  sufficient  to  pay  the  sum  of dollars  (the  sum  afliant  states  will  be 

due),  and  the  costs  of  this  attachment,  and  to  make  return  of  his  proceedings 
under  this  oi-der  to  the  next  term  of  the  circuit  court  of  the  said  county. 

Given  under  my  hand  this day  of .      E F ,  Justice. 

The  defendant  in  an  attachment  issued  under  this  section  may  make  defense 
thereto  in  the  same  manner  and  to  the  same  extent  as  in  other  cases;  and  the  same 
as  to  the  rent  claimed,  shall  be  proceeded  in,  tried  and  determined,  as  if  it  were 
an  original  action  brought  in  said  court,  and  the  afiidavit  and  attachment  shall 
take  the  place  of  a  declaration  in  the  case.  And  the  affidavit  in  such  case  shall  be 
returned  to  the  clerk  of  the  circuit  court  by  the  justice. 

§4. — The  officer  to  whom  any  attachment  issued  under  this  chapter  shall  be 
delivered  for  execution,  shall  execute  and  return  the  same  as  therein  required,  and 
if  he  fail  to  do  so,  he  and  his  sureties  in  his  official  bond  shall  be  liable  to  the 
plaintiff  in  the  case  for  all  damages  he  may  sustain  by  reason  of  such  failure. 

§  5. — Every  attachment  issued  under  the  provisions  of  this  chapter,  may  be 
levied  upon  any  estate,  real  or  personal,  of  the  defendant  named  therein,  or  so 
much  thereof  as  is  sufficient  to  pay  the  amount  for  which  it  issues,  except  that  an 
attachment  issued  under  the  third  section  shall  be  levied  on  personal  estate  only. 
The  plaintiff  may,  by  an  indorsement  on  the  order,  designate  any  i^erson  as  being 
indebted  to,  or  having  in  his  p>ossession,  the  effects  of  the  defendant,  or  one  of  the 
defendants;  and  in  such  case  the  clerk  shall  make  as  many  copies  of  the  order  as 
there  are  persons  designated,  with  an  indorsement  thereon  that  the  person  so 
designated  is  required  to  appear  at  the  next  term  of  the  court  in  which  the  action 
or  suit  is  pending,  and  disclose  on  oath  in  what  sum  he  is  indebted  to  the  defend- 
ant, and  what  effects  of  the  defendant  he  has  in  his  hands;  and  it  shall  be  suffi- 
ciently levied  on  such  person  by  delivering  him  a  copy  of  the  order  and  indorse- 


710  WEST  VIRGINIA. 

ment,  or  by  a  service  thereof  upon  him  in  the  same  manner  as  a  notice  may  by 
law  be  served;  and  if  the  same  be  levied  upon  real  estate,  it  shall  be  sufBciently 
served  by  an  indorsement  thereon,  or  upon  a  paper  annexed  thereto,  stating  as  near 
as  may  be  the  quantity,  or  the  supposed  quantity,  and  the  location  thereof. 

ATTACHMENT  BOND — ITS   CONDITION,   ETC. 

§  6. — But  if  the  plaintiff  shall,  at  the  time  of  suing-  out  such  attachment,  or  after- 
ward, give  bond  with  good  security,  approved  by  the  clerk  issuing  the  attachment,  in 
a  penalty  of  at  least  double  the  amount  of  the  claim  sworn  to,  with  condition  to  pay 
all  costs  and  damages  which  may  be  awarded  against  him,  or  sustained  by  any  person 
by  reason  of  the  suing  out  of  the  attachment,  and  to  pay  to  any  claimant. of  any 

Eroperty  seized  or  sold  imder  or  by  virtue  of  said  attachment,  all  damages  which 
0  may  recover  in  consequence  of  such  seizure  or  sale;  and  also  to  warrant  and 
defend  to  any  purchaser  of  the  property  such  estate  or  interest  therein,  as  is  sold, 
the  said  officer  shall  take  possession  of  the  property  levied  on  by  virtue  of  such 
attachment.  If  such  bond  be  given,  no  action  shall  be  maintained  against  the 
officer  levying  such  attachment  uf)on  property  or  effects  not  belonging  to  the 
debtor,  unless  it  shall  appear  that  such  levy  was  %villfully  and  knowingly  made. 
If  the  plaintiff  has  sued  out  an  order  of  attachment  without  giving  such  bond,  and 
afterward  gave  the  same  as  aforesaid,  it  shall  be  the  duty  of  such  clerk,  whether 
the  attachment  has  been  levied  or  not,  to  certify  the  fact  that  such  bond  has  been 
given  to  the  officer  who  levied  the  same,  or  in  whose  hands  it  was  to  be  levied,  or 
if  he  be  absent  or  out  of  office,  to  issue  a  new  order  of  attachment  and  to  place 
the  same  in  the  hands  of  some  other  proper  officer;  and  it  shall  be  the  duty  of  any 
such  officer  to  take  the  attached  property  into  his  possession  and  make  return  of 
such  order  in  like  manner  as  if  said  bond  had  been  given  before  the  issuing  of  the 
original  attachment.  The  defendant  may  except  to  the  said  bond,  or  to  the  suf- 
ficiency of  the  security  therein,  and  if  the  exceptions  be  sustained  by  the  court, 
the  attached  property  shall  be  returned  to  the  defendant,  unless  the  plaintiff  give 
a  proper  bond,  with  sufficient  security,  to  be  approved  by  the  court  within  such 
time  as  the  court  shall  direct. 

§  7. — ^The  officer  serving  the  attachment  shall  make  return  of  the  time  and 
manner  of  service  on  each  person  designated  as  being  indebted  to,  or  having  in  his 
possession,  the  property  of  any  such  defendant;  and  shall  also  return  a  list  and 
description  of  the  property  taken  (if  any)  under  such  attachment,  and  likewise 
the  date  of  such  service,  or  execution  thereof,  on  each  person  and  parcel  of 
property. 

§  8. — Such  attachment  may  be  issued  or  executed  on  Simday  if  oath  be  made 
that  defendant  is  actually  removing  his  effects  on  that  day. 

ATTACHMENT  LIEN — EEPLEVTING — KEEPING  OR  SELLING  PEOPERTT. 

§  9. — The  plaintiff  shall  have  a  lien,  from  the  time  of  the  levying  of  such 
attachment,  or  serving  a  copy  thereof  as  aforesaid,  upon  the  personal  property, 
choses  in  action,  and  other  securities  of  the  defendant  against  whom  the  claim  is, 
in  the  hands  of,  or  due  from,  any  garnishee  on  whom  it  is  so  served,  and  on  any 
real  estate  levied  on  by  virtue  thereof,  from  the  suing  out  of  the  same.  But  if  no 
bond  be  given  by  the  plaintiff,  and  such  personal  property,  choses  in  action,  or 
other  securities  of  the  defendant,  or  any  part  thereof,  be  sold  or  disposed  of  for  a 
valuable  consideration,  the  lien  of  'the  attachment  thereon  shall  cease  and  deter- 
mine from  the  date  of  such  sale  or  disposition. 

§  10. — Any  property  levied  on  or  seized  as  aforesaid  under  an>-  attachment, 
where  the  plaintiff  has  given  bond,  may  be  retained  by  or  returned  to  the  person 
in  whose  possession  it  was,  on  his  giving  bond,  with  condition  to  have  the  same 
forthcoming  at  such  time  and  place  as  the  court  may  require;  or  the  defendant 
against  whom  the  claim  is  may  release  from  any  attachment  the  whole  of  the 
estate  attached,  Ijy  giving  bond,  with  condition  to  perform  the  judgment  or  decree 
of  the  court.  The  bond,  in  either  case,  shall  be  taken  by  the  officer  serving  the 
attachment,  with  security,  payable  to  the  plaintiff,  and  in  a  penalty,  in  the  latter 
case,  at  least  double  the  amount  or  value  for  which  the  attachment  issued,  and  in 
the  former,  either  double  the  same  or  double  the  value  of  the  property  retained  or 
returned,  at  the  option  of  the  person  giving  it. 

§  11. — Every  such  bond  shall  be  returned  by  the  officer  to,  and  filed  by,  the 
clerk  of  the  court  ia  which  the  suit  is  pending,  or  to  which  the  attachment  is 
returnable;  and  the  plaintiff  may,  within  thirty  days  after  the  return  thereof,  file 
exceptions  to  the  same,  or  to  the  sufficiency  of  the  security  therein.  If  such 
exceptions  be  sustained,  the  court  shall  rule  the  said  officer  to  file  a  good  bond, 


WEST   YIRGINIA.  711 

■with  sufficient  security,  to  be  approved  by  it,  on  or  before  a  certain  day  to  be  fixed 
by  the  court.  If  ho  fail  to  do  so,  he  and  his  sureties  in  his  official  bond  shall  be 
liable  to  the  plaintiff  as  for  a  breach  of  such  bond.  But  the  officer  shall  have  the 
same  rights  and  remedies  against  the  parties  to  any  bond  so  adjudged  bad,  as  if  he 
were  a  surety  for  them. 

§  12. — When  any  attachment  is  sued  out,  either  at  law  or  in  equity  (except 
against  non-residents),  on  such  affidavit  as  is  mentioned  in  the  first  section  of  this 
chapter,  although  the  property  or  estate  attached  be  not  replevied  as  aforesaid,  the 
interest  and  profits  thereof,  pending  the  suit  and  before  judgment  and  decree, 
ma^r  be  jjaid  to  the  defendant,  if  the  court  deem  it  proper;  and  at  any  time  during 
such  period  the  court,  or  in  vacation  the  judge  thereof,  may  discharge  the  attach- 
ment, as  to  the  whole  of  the  estate  of  the  defendant  against  whom  the  claim  is,  on 
his  giving  bond,  with  security,  payable  to  the  plaintiff  in  a  penalty  double  the 
value  of  such  estate,  with  condition,  if  judgment  or  decree  be  rendered  for  the 
plaintiff  in  said  suit,  to  pay  the  said  value,  or  so  much  thereof  as  may  be  neces- 
Bary  to  satisfy  the  same. 

§13. — All  property  seized  under  any  attachment,  and  not  replevied  or  sold 
before  judgment,  shall  be  kept  in  the  same  manner  as  similar  property  taken 
under  execution.  But  such  as  is  expensive  to  keep,  or  perishable,  may  be  sold  by 
order  of  the  court,  or  in  vacation  thereof,  by  order  of  the  judge;  such  sale  to  be 
made  in  the  same  manner  aa  if  it  were  a  sale  under  execution,  except  that  where 
the  claim  for  which  the  attachment  was  sued  out  is  not  yet  payable,  or  the  court  or 
judge  sees  other  reasons  for  directing  a  credit,  the  sale  under  this,  or  any  other 
section  of  this  chapter,  shall  be  on  credit  until  the  time  it  is  payable,  or  such  other 
time  as  the  court  or  judge  may  direct,  and  for  the  proceeds  of  sale,  bond  with 
good  security  shall  be  taken,  payable  to  the  officer,  for  the  benefit  of  the  party 
entitled,  and  shall  be  returned  by  the  officer  to  the  court. 

PROCEEDINGS   WHERE  THERE  IS  A  GARNISHEE. 

§14. — When  any  garnishee  shall  appear  he  shall  be  examined  on  oath.  If  it 
appear  on  such  examination,  or  by  his  answer  to  a  bill  in  equity,  that  at  or  after 
the  service  of  the  attachment  he  was  indebted  to  the  defendant  against  whom  the 
claim  is,  or  had  in  his  possession  or  control  any  goods,  chattels,  money,  seciu-ities 
or  other  effects  belonging  to  the  said  defendant,  the  court  may  order  him  to  pay 
the  amount  so  due  by  him,  and  to  deliver  such  effects  to  such  person  as  it  may 
appoint  as  receiver;  or  such  garnishee,  with  leave  of  the  court,  may  give  bond, 
with  sufficient  security,  payable  to  such  person  and  in  such  penalty  as  the  court 
may  prescribe,  with  condition  to  i^ay  the  amount  due  by  him  and  have  such  effects 
forthcoming  at  such  time  and  place  as  the  court  may  thereafter  require. 

§  1,5. — If  any  garnishee  summoned  as  aforesaid  fail  to  appear  in  an  attachment 
at  law,  the  court  may  either  compel  him  to  appear  or  hear  proof  of  any  debt  due 
by  him  to,  or  effects  in  his  hands  of,  the  defendant  in  such  attachment,  and  make 
such  orders  in  relation  thereto  as  if  what  is  so  proved  had  appeared  in  his  exam- 
ination. 

§  10. — When  it  is  suggested  by  the  plaintiff  in  any  attachment  at  law  that  the 
garnishee  has  not  fully  disclosed  the  debts  due  by  him  to,  or  effects  in  his  hands  of, 
the  defendant  in  such  attachment,  the  court  shall  cause  a  jury  to  be  impanneled, 
without  any  formal  pleadings,  to  inquire  as  to  such  debts  and  effects,  and  proceed 
in  respect  to  any  such  found  by  the  jury  in  the  same  manner  as  if  they  had  been 
confessed  by  the  garnishee.  If  the  verdict  be  in  favor  of  the  garnishee,  he  shall 
have  judgment  for  his  costs  against  the  plaintiff. 

ORDER   OF   PUBLICATION — DEFENSE   TO  THE  ATTACHMENT — CONFLICTING   CLAIMS  AND 

JUDGMENT. 

§  17. — When  any  attachment,  except  under  the  third  section,  is  returned  exe- 
cuted, an  order  of  publication,  as  prescribed  in  chapter  one  hundred  and  twenty- 
four,  shall  be  made  against  the  defendant  against  whom  the  _claim  is,  unless  _he 
has  been  served  with  a  copy  of  the  attachment  or  with  process  in  the  suit  in  which 
the  attachment  issued. 

§  18. — Either  the  defendant  in  any  such  attachment,  or  any  garnishee,  or  any 
party  to  any  forthcoming  or  replevy  bond  given  as  aforesaid,  or  the  officer  who 
may  be  liable  to  the  ijlaintiff  by  reason  of  such  bond  being  adjudged  bad,  may 
make  defense  to  such  attachment,  but  the  attachment  shall  not  thereby  be  dis- 
charged or  the  property  levied  on  released. 

§  19. — The  right  to  sue  out  an  attachment  may  be  contested,  and  when  the 
court  is  of  opinion  that  the  facts  stated  in  the  affidavit  were  not  sufficient  to 


712  "WEST   VIRGINIA. 

authorize  the  issuing  thereof,  or  that  the  affidavit  is  otherwise  insufficient,  judg- 
ment shall  be  entered  that  the  attachment  be  quashed.  If  the  defendant  desire  to 
controvert  the  existence  of  the  grounds  for  the  attachment  stated  in  the  affidavit, 
he  may  file  a  plea  in  abatement  denjnn;^  the  existence  of  such  grounds,  and  the 
issue  on  such  plea  shall  be  tried  by  a  jury,  unless  the  same  be  waived  by  the  par- 
ties. The  affirmative  of  such  issue  shall  be  with  the  plaintiff;  and  if  he  fail  to 
prove  to  the  satisfaction  of  the  jury  the  existence  of  the  grounds  denied  by  the 
defendant,  the  verdict  shall  be  for  the  defendant,  and  judgment  shall  be  entered 
that  the  attachment  be  abated.  But  the  court  may  grant  new  trials  as  in  other 
cases.  When  the  attachment  is  properly  sued  out,  and  the  case  heard  upon  its 
merits,  if  the  court  be  of  opinion  that  the  claim  of  the  plaintiff  is  not  established, 
final  julgment  shall  be  given  for  the  defendant.  In  either  case  the  defendant 
shall  recover  his  costs,  and  there  shall  be  an  order  for  the  restoration  to  him  of 
the  attached  effects. 

§  20. — If  the  claim  of  the  plaintiff  in  any  suit  or  proceeding  under  this  chap- 
ter be  established,  judgment  or  decree  shall  be  rendered  for  lum,  and  the  court 
shall  order  th3  sale  of  any  real  or  personal  estate  levied  upon  under  and  by  virtue 
of  any  such  attachment,  which  shall  not  have  been  previously  sold  or  replevied 
under  this  chapter,  and  direct  the  proceeds  of  the  sale  of  such  property  and  what- 
ever else  the  attachment  has  been  levied  upon,  including  what  is  embraced  by  such 
replevy  or  forthcoming  bond,  to  be  applied  in  satisfaction  of  such  judgment  or 
decree.  But  no  real  estate  shall  be  sold  under  such  order  until  all  other  property 
and  money  so  levied  on  as  aforesaid  has  been  exhausted,  and  then  only  so  much 
.thereof  as  is  necessary  to  pay  the  judgment  or  decree. 

§  21. — When  a  sale  of  real  estate  is  so  ordered,  the  court  shall  prescribe  in  the 
order  the  terms  of  such  sale  and  the  officer  or  person  by  whom  it  shall  be  made. 
The  officer  or  person  making  such  sale  of  real  estate  shall  report  to  the  court 
which  ordered  the  sale,  the  real  estate  so  sold  by  him,  with  the  name  of  the  pur- 
chaser, the  sum  for  which  it  sold,  and  the  time  and  place  of  such  sale.  The  court 
for  good  cause,  may  refuse  to  confirm  the  sale,  and  order  the  property  to  be  re- 
sold; but  if  good  cause  for  setting  the  sale  aside  be  not  shown,  the  court  shall  con- 
firm the  same,  and  shall  direct  a  deed  of  conveyance  of  the  real  estate  so  sold  to 
be  made  to  the  purchaser  thereof,  by  the  officer  or  person  who  sold  the  same,  or 
by  a  special  commissioner  appointed  for  that  purpose,  whenever  the  iiurchase- 
money  thereof,  with  its  interest,  shall  have  been  fully  paid.  An  officer  heretofore 
or  hereafter  directed  by  the  court  to  make  such  conveyance  may  make  the  same  in 
his  official  character,  notwithstanding  his  term  of  office  shall  have  expired.  And 
in  case  of  death,  removal,  inabilitj^  or  failure  or  refusal  to  act,  of  the  officer  or  per- 
son heretofore  or  hereafter  appointed  to  make  any  such  sale  or  conveyance,  before 
the  same  ii  made,  the  circuit  court  of  the  county  in  which  such  judgment,  decree 
or  order  was  rendered  or  made,  may  appoint  a  special  commissioner  to  malce  such, 
sale  or  conveyance,  or  both,  as  required  by  such  judgment,  decree  or  order. 

WHEN  PLAINTIFF   MUST   GIVE  BOND    BEFORE   SALE. 

§22. — But  if  the  defendant  whose  real  estate  is  attached  has  not  apjreared  in 
the  action  or  suit,  or  been  served  with  a  copy  of  the  attachment  sixty  days  before 
such  judgment,  decree  or  order,  no  sale  of  the  real  estate  so  attached  shall  be 
made  until  the  plaintiff  or  some  one  for  him,  shall  give  bond,  with  sufficient  secu- 
rity, in  such  penalty  as  the  court  shall  approve,  with  condition  that  the  plaintiff 
will  perform  such  future  order  as  may  be  made  by  the  court  in  the  action  or  suit, 
in  case  the  defendant  appear  and  make  defense  therein  within  the  time  prescribed 
by  law:  Provided,  that  after  the  right  of  a  defendant  to  appear  and  make  defense 
in  any  such  action  or  suit  shall  have  expired  by  limitation  or  otherwise  as  pre- 
scribed ii  this  chapter,  a  sale  of  such  re?l  estate  may  be  made  under  the  judg- 
ment, order  or  decree,  whether  such  bond  has  been  given  or  not.  If  personal 
property  be  levied  upon  and  ordered  to  be  sold,  ■•vhere  there  has  been  no 
such  appearance  or  service  of  the  attachment,  as  aforesaid,  and  no  bond  has  been 
given  by  the  plaintiff  as  provided  in  section  six  of  this  chapter,  the  court  shall 
require  such  bond  to  be  given  by  the  plaintiff,  and  if  the  plaintiff,  or  some  one  for 
him,  fail  to  give  such  bond  within  a  reasonable  time,  the  court  shall  disjxjse  of 
6uch  property,  or  the  proceeds  thereof,  as  to  it  shall  seem  just 

PETITION  DISPUTING  PLAINTIFF'S  CLAIM,  ETC. 

§  2.3.—  Any  person  interested  may  file  his  petition  at  any  time  before  the  prop- 
erty attached,  as  the  estate  of  a  defendant,  is  sold  under  the  decree  or  iudsment, 
or  if  the  proceeds  of  the  sale  have  not  been  paid  over  to  the  plaintiff  or  his 
assigns,  within  one  year  after  such  sale,  disputing  the  validity  of  the  i^laintiff's 
attachment  thereon,  or  stating  a  claim  thereto,  or  an  interest  in  or  lien  on  the 


WEST    VIRGINIA.  713 

same,  imcler  any  other  attachment  or  otherwise,  and  its  nature,  and  upon  givin» 
security  for  costs,  the  court,  without  any  other  pleading,  shall  itnpannel  a  jury  to 
inquire  into  such  claim,  and  if  it  be  found  that  the  petitioner  has  title  to,  or  lien 
on,  or  any  interest  in  such  property  or  its  proceeds,  the  coui-t  shall  make  such 
order  as  is  necessary  to  protect  his  rights;  the  costs  of  which  inquiry  shall  be  paid 
by  either  party,  at  the  discretion  of  the  court. 

PRIORITY   OF   ATTACHMENTS. 

§  24. — The  attachment  first  served  on  the  same  personal  property,  or  on  the 
person  having  such  property  in  his  possession,  shall  have  priority  of  lien;  and  tha 
officer  making  the  levy  shall  note  on  the  order  of  attachment  the  day  and  hour  at 
which  the  levy  is  made:  Provided,  that  where  two  or  more  attachments  are  deliv- 
ered to  the  .same  officer  at  different  times  to  be  served,  he  shall  serve  them  in  the 
ordjr  in  which  he  receives  them,  and  when  they  are  delivered  at  the  same  time, 
they  sliall  be  served  at  the  same  time  and  be  satisfied  pro  rata  out  of  the  proceeds 
of  the  attached  j)roperty. 

REHEARING  AFTER  JUDGMENT   OR  DECREE. 

§25. — If  a  defendant  against  whom,  on  publication,  judgment  or  decree  has 
been  or  shall  hereafter  be  rendered,  in  an  action  or  .suit  in  which  an  attachment 
has  been  or  may  be  sued  out  and  levied  as  provided  in  this  chapter,  or  his  personal 
representatives,  sh.all  return  to  or  appear  ojienly  in  this  state,  he  may,  within  one 
year  after  a  copy  of  such  judgment  or  decree  has  been  or  shall  be  served  upon  him, 
at  the  instance  of  the  plaintiff,  or  within  five  years  from  the  date  of  such  judg- 
ment or  decree,  if  he  be  not  so  served,  petition  to  have  the  proceedings  reheard. 
On  giving  security  for  the  costs  which  have  accrued  and  shall  thereafter  accrue, 
Buch  defendant  shall  be  admitted  to  make  defense  against  such  judgment  or  decree, 
as  if  ho  had  ajipeared  in  the  case  before  the  same  was  rendered,  except  that  the 
title  of  any  bona  fide  purchaser  to  any  property,  real  or  personal,  sold  under  such 
attachment,  .shall  not  be  brought  in  question  or  impeached.  But  this  section  shall 
not  apply  to  any  case  in  which  the  petitioner,  or  his  decedent,  was  served  with  a 
copy  of  the  attachment,  or  with  process  in  the  suit  wherein  it  issued,  more  than 
sixty  days  before  the  date  of  the  judgment  or  decree,  or  to  a  case  in  which  he 
appeared  and  made  defense. 

JUDGMENT  OR  DECREE  ON  REHEARING. 

§  26. — On  any  rehearing  or  new  trial  had  under-  the  preceding  section  of  this 
chapter,  if  the  judgment  or  decree  be  for  the  defendant,  the  court  may  order  the 
plaintilf  in  the  original  suit,  or  his  personal  representative,  to  restore  any  money 
pai  1  him  under  his  judgment  or  decree  therein,  with  interest  from  the  date  of  such 
order,  to  the  defendant,  or  his  i^ersonal  representative,  entitled  thereto,  and  may 
enter  a  judgment  or  decree  against  him  therefor;  and  if  the  defendant  or  his  per- 
sonal representative  fail  to  recover  on  such  rehearing  or  new  trial,  the  original 
jud,gment  or  decree  shall  be  confirmed;  and  in  either  case  the  costs  shall  be 
adjudged  to  the  prevailing  party. 

WHERE    DAMAGES    AGAINST    PLAINTIFF;    ON   APPEAL    FROM   JUDGMENT;    HOW  BONDS 
ARE   GIVEN   IN   ATTACHMENT   dASES. 

§  27. — If  upon  defense  being  made  in  any  case  in  which  property  is  seized 
under  attachment,  that  attachment  was  sued  out  without  sufficient  cause,  it  be 
found  either  by  the  court  or  by  the  jury,  if  one  be  impanneled,  that  the  defense  is 
well  founded,  judgment  may  be  entered  for  the  defendant  against  the  plaintiff  for 
the  damages  sustained  by  the  defendant  by  reason  thereof. 

§  28. — Where  judgment  or  decree  in  favor  of  plaintiff  is  rendered  in  any  case 
in  which  an  attachment  is  sued  out,  and  on  appeal  therefrom  an  appeal  bond  is 
given  with  condition  to  prosecute  the  appeal  with  effect,  or  pay  the  debt,  interest, 
costs  and  damages,  as  well  as  the  costs  of  the  appeal,  the  officer  in  whose  custody 
any  attached  piroperty  may  be  shall  deliver  the  same  to  the  owner  thereof. 

§  29. — Any  bond  authorized  or  required  by  any  section  of  this  chapter  may  be 
given  either  by  the  party  himself  or  by  any  other  person. 


Before  justices  of  the  peace— Stats.  1881,  p.  92;  Code  of  1808,  sees.  193-210; 
Stats.  1882,  p.  401. 

Exemptions,  Amended  Code,  1884 — Personal  property,  chap.  41,  sees.  23-29; 
homesteads,  sees.  30-34;  county  property,  Stats.  1881,  p.  30;  school-houses,  Stats. 
1881,  p.  187. 

Damages  for  wrongful  attachment — Chap.  103. 

Process  returnable — Stats.  1882,  p.  329. 


714  WISCONSIN. 


AVISCONSIN. 

[Revised  Statutes,  1878,  and  subsequent  Statutes.J 


CHAPTER  CXXIV. 

OF  ATTACHMENT. 


§  2729. — Any  creditor  shall  be  entitled  to  proceed  by  attachment,  in  the  circuit 
court  for  the  proper  county,  against  the  property  of  his  debtor,  whether  a  natural 
person  or  corporation,  in  the  cases,  upon  the  conditions  and  in  the  manner  pre- 
scribed in  this  chapter.  No  writ  of  attachment  shall  be  issued  against  a  municipal 
corporation. 

HOW  ISSUED. 

§  2730. — The  writ  of  attachment  shall  be  issued  on  the  request  of  the  plaintiff, 
by  the  clerk  of  the  court,  either  at  the  time  of  the  issuiag  of  the  summons  in  the 
action,  or  at  any  time  thereafter  before  final  judgment.  It  shall  be  directed  by  the 
style  of  "  The  state  of  Wisconsin,"  to  the  sheriff,  or  other  proper  officer,  of  some 
county  in  which  the  property  of  the  defendant,  so  proceeded  against,  may  be  sup- 
posed to  be,  and  shall  require  him  to  attach  and  safely  keep  all  the  property  of 
such  defendant  within  his  county,  or  so  much  thereof  as  may  be  sufficient  to  satisfy 
the  plaintiff's  demand,  together  with  costs  and  exjienses.  It  shall  be  attested  in 
the  name  of  the  presiding  judge  of  the  court,  and  be  sealed  with  its  seaL 

§  2731. — Before  any  writ  of  attachment  shall  be  executed,  the  plaintiff,  or  some 
one  in  his  behalf,  shall  make  and  annex  thereto  an  affidavit,  stating  that  the  de- 
fendant named  in  such  writ  is  indebted  to  the  plaintiff  in  a  sum  exceeding  fifty 
dollars,  and  specifying  the  amount  of  such  indebtedness  as  near  as  may  be,  over 
and  above  all  legal  set-offs,  and  that  the  same  is  due  upon  contract,  express  or  im- 
plied, or  upon  judgment  or  decree,  and  containing  a  further  statement  that  the 
deponent  knows,  or  has  good  reason  to  believe,  either: 

1.  That  the  defendant  has  absconded,  or  is  about  to  abscond,  from  this  state,  or 
is  concealed  therein,  to  the  injury  of  his  creditors,  or  keeps  himself  concealed 
therein,  with  intent  to  avoid  the  service  of  a  simamons. 

2.  That  the  defendant  has  assigned,  conveyed,  disposed  of  or  concealed,  or  is 
about  to  assign,  convey,  dispose  of  or  conceal  his  property,  or  any  part  thereof, 
with  intent  to  defraud  his  creditors. 

3.  That  the  defendant  has  removed,  or  is  about  to  remove,  any  of  his  property 
out  of  this  state,  with  intent  to  defraud  his  creditors;  or 

4.  That  the  defendant  fraudulently  contracted  the  debt,  or  incurred  the  obliga- 
tion, respecting  which  the  action  is  brought;  or_ 

5.  That  the  defendant  is  not  a  resident  of  this  state;  or 

6.  That  the  defendant  is  a  foreign  corporation;  or  if  created  under  the  laws  of 
this  state,  that  all  the  proper  officers  thereof  on  whom  to  serve  the  summons  do 
not  exist,  are  non-residents  of  the  state,  or  cannot  be  found;  or 

7.  That  the  action  is  brought  against  the  defendant,  as  principal  upon  an  offi- 
cial bond,  to  recover  money  due  the  state,  or  to  some  county  or  other  municipality 
therein;  or  that  the  action  is  brought  against  a  defendant  as  principal  upon  a  bond 
or  other  instrument  given  as  evidence  of  indebtedness,  for  or  to  secure  the  payment 
of  money  embezzled  or  misappropriated  by  such  defendant,  whilst  acting  as  an  offi- 
cer of  the  state  or  of  any  county  or  municipahty  thereia.  [Amended  Stats.  1880, 
P-  272.] 

An  action  may  maiutaiued  and  a  writ  of  attachment  issued  on  a  demand  not 
yet  due  in  any  cases  mentioned  in  this  section,  except  the  cases  mentioned  in 
the  fifth,  sixth  and  seventh  subdivisions,  and  the  same  proceedings  in  the  action 
shall  be  had,  and  the  same  affidavit  shall  be  required,  as  in  actions  upon  matured 
demands,  except  that  the  affidavit  shall  state  that  the  debt  is  to  become  due:  Fro- 
vided,  that  the  undertaking,  specified  in  section  two  thousand  seven  hundred  and 
thirty- two,  shall  be  conditioned  in  three  times  the  amount  demanded.  In  case  an 
attachment  be  issued  before  the  maturity  of  the  debt,  and  a  traverse  to  such  at- 
tachment is  sustained,  the  coiu-t  shall  dismiss  the  action  and  shall  render  a  judg- 
ment of  costs  against  the  plaintiff.     [Stats.  1880,  p.  271.] 


WISCONSIN.  715 

§  2732. — Before  the  writ  of  attachment  shall  be  executed,  a  written  undertaking 
on  the  part  of  the  plaintiff,  with  sufficient  surety,  shall  be  delivered  to  the  officer, 
to  the  effect  that  if  the  defendant  recover  judgment,  the  plaintiff  shall  pay  all  costs 
that  may  be  awarded  to  the  defendant,  and  all  damages  which  he  may  sustain,  by 
reason  of  the  writ  of  attachment,  not  exceeding  the  sum  specified  in  the  undertak- 
ing, which  sum  shall  not  be  less  than  two  hundred  and  fifty  dollars.  The  surety 
shall  justify  his  responsibility,  by  affidavit,  annexed  to  such  imdertaking,  stating 
that  he  is  a  resident,  and  householder  or  freeholder,  within  the  state,  and  is  worth 
the  sHm  specified  in  the  undertaking,  in  property  within  the  state,  over  and  above 
all  his  debts,  and  exclusive  of  all  property  exempt  from  execution. 

§  2733. — In  case  the  defendant  shall  not  be  satisfied  Avith  the  amount  specified 
in  the  undertaking,  or  with  the  sureties,  he  may,  upon  not  less  than  five  days'  no- 
tice to  the  plaintiff,  apply  to  a  judge  of  the  court  for  additional  security,  and  such 
judge  may,  by  order,  require  the  plaintiff  to  give  and  file  another  undertaking,  to 
be  approved  by  him,  in  such  sum  as  he  shall  deem  proper,  not  exceeding  the  value 
of  the  property  attached,  as  appears  from  the  appraisement.  The  surety  shall 
justify  his  responsibility  as  provided  in  the  preceding  section;  but  if  there  he  more 
than  one  surety,  they  may  be  accepted,  if  it  appear  that  they  are  jointly  responsi- 
ble for  the  required  sum. 

§  2734.  ^The  writ  of  attachment,  the  affidavit  and  undertaking  therefor,  shall 
be  annexed  together,  but  not  to  the  summons  in  the  action;  the  officer  executing 
the  writ  shall  return  thereon  all  his  proceedings  under  and  hy  virtue  thereof,  and 
thereafter,  and  within  twenty  days  from  receipt  of  the  undertaking,  shall  file  aU 
said  papers  with  the  clerk  of  the  court.  No  action  shall  be  maintained  on  any  such 
undertaking  until  after  fijial  judgment  in  the  action,  unless  the  same  be  discon- 
tinued or  dismissed. 

§  2735. — Alias  writs  of  attachment  in  the  same  action  may  be  issued  to  the 
sheriffs,  or  other  proper  officers,  of  different  counties,  at  any  time  before  judgment. 
In  such  case  a  copy  of  the  affidavit  annexed  to  the  original  shall  be  annexed,  and  such 
writ  indorsed  as  an  alias.  Such  other  writs  shall  be  executed  and  retm-ned  in  the 
same  maimer  as  the  originaL 

HOW  EXECUTED. 

§  2736. — The  officer  having  the  writ  of  attachment  shall  execute  the  same  with- 
out delay,  by  seizing  so  much  of  the  property  of  the  defendant,  when  the  same  can 
be  found  in  his  county,  as  will  be  sufficient  to  satisfy  the  demand  of  the  plaintiff, 
with  costs  and  expenses,  and  by  making  an  inventory  thereof;  he  shall  cause  aU. 
personal  property  attached  by  him  to  be  appraised  by  two  disinterested  freeholders 
of  the  county,  who  shall  be  first  sworn  by  him  to  make  a  true  appraisement  thereof, 
which  appraisement  shall  be  signed  by  the  appraisers,  and  the  appraisement  and 
inventory  shall  be  returned  Avith  the  writ  of  attachment;  he  shall  serve  copies  of 
the  writ  of  attachment,  affidavit  and  undertaking  annexed,  and  inventory,  upon 
the  defendant  in  the  same  manner  as  a  summons.  In  case  of  a  non-resident  or  a 
foreign  corporation,  the  sheriff  shall  serve  such  copies  on  anj'-  agent  of  such  defend- 
ant in  the  county,  if  any  be  known  to  him. 

§  2737. — To  attach  real  estate,  or  any  fight  or  interest  therein,  it  shall  not  be 
necessary  for  the  officer  to  enter  upon  or  be  within  view  of  the  land.  But  he  shall 
file  in  the  office  of  the  register  of  deeds  a  copy  of  the  writ  of  attachment,  with  his 
certificate  indorsed  or  affixed,  that  hj  virtue  of  the  original  ^vrit,  of  which  such 
copy  is  a  true  copy,  he  has  attached  such  real  estate,  or  all  the  interes  of  the  de- 
fendant therein,  describing  the  same  with  convenient  certaintj^,  as  the  property  of 
a  defendant,  naming  him,  in  such  ^^Tit.  The  real  estate,  or  the  right  or  interest 
therein  so  attached,  shall  be  bound,  and  the  attachment  a  Hen  thereon,  from  the 
time  of  so  filing  such  copy  and  certificate. 

§  2738. — All  the  property  in  the  state  of  the  defendant  named  in  the  writ,  not 
exempt  from  execution,  shall  be  liable  to  be  attached.  Rights  or  shares  in  the 
stock  or  piroperty  of  any  association  or  corporation,  ■\\'ith  the  interests  and  profits 
thereon,  and  other  personal  property,  shall  be  attached  in  the  same  manner  in 
which  an  execution  may  be  levied  on  the  same,  and  the  provisions  respecting  the 
levy  of  an  execution  thereon  shall  be  applicable  to  the  execution  of  an  attachment. 
Personal  property  shall  be  bound  by  the  writ  of  attachment  from  the  time  the 
same  is  attached  thereby. 

§  2739. — If  in  any  case  when  an  officer  has  a  writ  of  attachment  against  prop- 
erty, there  is  any  reasonable  doubt  as  to  the  ownership  of  the  property,  or  as  to  its 
liability  so  to  be  taken  on  the  vrrit  of  attachment,  the  officer  may  require  sufficient 
security  to  indenuiify  him  for  attaching  such  property. 


716  wiscoNsry. 

§  2710. — TVlien  any  property  taken  on  a  writ  cf  attachment  or  received  by  the 
officer  from  r.nj^  [;arnislie?,  in  any  civil  action,  including  actions  commenced  before 
a  justice  of  the  peace,  r.nd  appealed  to  the  circuit  court,  shall  be  Kkcly  to  perish  or 
to  depreciate  in  value  before  the  probablo  end  of  the  action,  or  the  keeping  thereof 
shall  be  attended  with  much  loss  or  expense,  the  court  or  a  judge  may,  by  order, 
direct  the  same  t  j  be  sold,  in  tuch  manner  and  upon  such  time  and  terms  as  the 
best  interests  of  the  parties  demand,  and  the  money  realized  fihall  be  held  by  the 
officer  in  lieu  of  the  property  sold.  That  defendant,  notwithstanding  the  delivery 
of  such  undertaking,  m."y  deny  any  or  all  of  the  allegations  of  the  affidavit  an- 
nexed to  the  writ  of  attachment,  as  provided  in  section  two  thousand  seven  hun- 
dred and  forty-live.     [Amended  Stats.  1881,  p.  422.] 

§  2741. — The  officer  shall  keep  the  property  seized  by  him,  and  the  proceeds  of 
such  as  shall  have  been  sold,  to  answer  any  judgment  which  may  be  recovered  in 
such  action;  and  shall,  subject  to  the  direction  of  the  court  or  judge,  collect  and 
receive  into  liis  possession  all  the  debts,  credits  and  effects  of  the  defendant.  The 
officer  may  also  take  such  legal  proceedings,  either  in  his  o'rni  name,  or  in  the  name 
of  such  defendant,  as  taay  be  necessary  for  that  iiurpose,  and  discontinue  the  same 
at  such  times  and  on  such  terms  as  the  comrt  or  judge  may  direct. 

DISCHAEGING,    VACATING  OR  DEFENDING  ATTACHMENTS. 

§  2742. — The  defendant  may,  at  any  time  before  judgment,  deliver  to  the  officer 
having  the  writ,  or  an  alias  Vv-rit,  on  which  property  has  been  attached,  an  under- 
taking executed  by  at  least  two  cm-eties,  to  the  effect  that  they  wiU,  on  demand, 
pay  to  the  xdaintiff  the  amount  of  the  judgment,  with  all  costs,  that  may  be  recov- 
ered against  such  defendant  in  the  action,  not  exceeding  the  sum  specified  in  the 
undertaking,  Vvdth  interest.  Such  sum  shall  be  at  least  double  the  amount  alleged 
to  be  due  i.i  the  affidavit  annexed  to  the  ■wi-it,  or,  at  defendant's  ojition,  at  least 
double  the  value  of  the  property  attached  upon  such  ■writ,  or  alias  writ,  according 
to  the  appraisement;  or,  if  real  estate,  in  a  sum  fixed  by  order  of  the  com-t,  or  a 
judge,  en  notice.  The  sureties  shall  justify  their  responsibility,  as  provided  in 
section  tv.'o  thousand  seven  hundred  and  thirty-two,  but  may  be  accepted  if  it  ap- 
pears that  they  are  j  ointly  resiaonsible  for  the  required  sum. 

§  2743. — The  officer  shall  forth'with  give  to  the  i^laintiff  a  copy  of  such  under- 
taking, with  notice  of  the  time  Avhen  the  same  was  delivered  to  him;  and  the 
Elaintiff  shall,  within  three  daj's  after  receipt  thereof,  give  notice  to  the  officer  that 
0  cxcept.'s  to  the  sufficiency  of  the  sureties,  or  he  shall  be  deemed  to  have  v.-aivcd 
all  objections  to  them.  W  hen  plaintiff  excepts,  the  sureties  shall  justify  in  like 
manner  as  bail  upon  arrest,  and  the  provisions  of  sections  tv.'o  thousand  seven  hun- 
dred and  fom-,  two  tliousand  seven  hundred  and  five,  and  two  thousand  seven  hun- 
dred and  six,  shall  be  applicable  thereto.  The  officer  shall  be  responsible  for  the 
sufficiency  of  such  sureties,  and  may  therefor  retain  possession  of  the  attached 
proi^erty  until  they  shall  bo  justify,  or  objection  be  so  waived.  Thereafter  the 
officer  shall  deliver  the  property  attached  and  held  by  him  upon  such  •svrit  to  such 
defendant;  if  real  estate,  a  certificate  of  the  discharge  thereof,  which  may  be  filed 
in  the  office  of  the  register  cf  deeds;  and  the  action  shall  thenceforward  proceed  as 
if  no  writ  cf  attachment  had  been  issued;  but  if  the  plaintiff  recover,  all  his  costs 
and  disbursements  thereon  shall  be  taxed  and  included  in  his  judgment.  At  any 
time  after  judgment  in  his  favor,  the  plaintiff  may  maintain  an  action  upon  any 
such  undertaking,  and  shall  recover  the  amount  of  such  judgment,  with  interest 
and  costs,  not  exceeding  the  sum  specified  in  such  undertaking. 

§  2744. — The  court,  or  the  presiding  judge  thereof,  may,  at  any  time  before  the 
trial  of  the  action,  or  a  release  of  the  property  under  the  preceding  section,  vacate 
or  modify  the  writ  of  attachment,  for  iiTegularity  or  other  sufficient  cause,  upon 
five  days'  notice  of  motion;  and  the  motion  therefor  may  be  combined  with  a  mo- 
tion to  increase  the  plaintiff's  security,  under  section  two  thousand  seven  hundred 
and  thirty-three. 

§  2745. — At  any  time  within  ten  days  after  notice  of  the  issuing  of  a  writ  of  at- 
tachment against  his  property,  or  within  the  time  in  which  he  may  answer  the 
complaint  in  the  action,  but  before  judgment,  the  defendant  may  by  a  special  an- 
swer, verified,  served  and  filed  as  a  pleading  is  recjuired  to  be,  deny  the  existence, 
at  the  time  of  the  making  of  the  affidavit  annexed  to  the  vrrit  of  attachment,  of 
any  or  all  the  material  facts  stated  therein,  except  the  alleged  liability,  and  the 
amount  thereof.  The  issue  so  raised  shall  be  tried  by  the  court,  before  the  trial  of 
the  action,  if  such  issue  be  joined  before  such  trial,  and  the  affirmative  thereof  be 
ujjon  the  i)lain*iff. 

§  2746. — If  the  court,  on  the  trial  of  such  issue,  find  for  the  defendant,  the  judge 
presiding  shall  tax  the  defendant's  costs  of  such  trial,  and  an  order  shall  be  entered 


"WISCONSIN  717 

that  the  property  attached  be  forthwith  delivered  up  to  the  defendant;  and  if  such 
tiial  be  before  the  trial  of  the  action,  the  jury  shall  on  the  latter  trial  assess  the 
damages  sustained  by  the  defendant  by  reason  of  the  taking  and  detention,  or  sale, 
of  the  jiroperty  attached,  or  by  reason  of  any  injury  thereto;  and  the  same,  to- 
gether with  the  costs  so  taxed,  shall  be  applied  by  them  as  a  set-off  to  the  plaintiff's 
demand,  and  if  in  excess  of  it,  or  the  plaintiff  fail  to  recover,  the  verdict  shall  be 
for  the  defendant  for  the  amount  his  due.  But  if  such  trial  be  after  the  trial  of 
the  action,  the  court  may  impannel  a  jury,  or  proceed  itself,  to  assess  such  damages, 
and  shall  in  like  manner  apply  the  same  when  so  assessed,  with  the  costs  so  taxed, 
as  a  set-off  to  the  plaintiff's  demand  as  established  upon  the  trial,  and  give  judg- 
ment accordingly.  If  the  court  on  the  trial  of  such  issue  find  for  the  iilaintiff,  the 
presiding  judge  shall  tax  the  plaintiff's  costs  of  such  trial,  and  the  amount  so  taxed 
shall,  if  he  recover,  be  taxed  by  the  clerk  as  disbursements  in  the  action;  and  if 
the  defendant  recover  judgment  in  the  action,  shall  be  applied  toward  payment 
thereof. 

§2747. — If  on  the  trial  of  the  action  the  jury  find  for  the  defendant,  or  the 
plaintiff  be  nonsuited,  they  shall  specially  assess  the  damages  sustained  by  bim,  by 
reason  of  the  taking  and  detention  or  sale  of  any  property  attached,  or  by  reason 
of  any  injury  thereto,  and  the  defendant  shall  have  judgment  therefor,  in  addition 
to  any  other  damages  found  in  his  favor.  If  the  action  be  dismissed  or  discon- 
tinued, the  court,  on  request  of  either  party,  shall  imjiannel  a  jiu'y  to  assess  such 
damages,  and  the  defendant  shall  have  judgment  therefor  accordingly.       ' 

§  2748. — Whenever  the  action  shall  be  dismissed  or  discontinued,  or  the  defend- 
ant in  the  writ  of  attachment  shall  recover  judgment,  all  the  money  or  property, 
held  by  any  writ  of  attachment,  shall  be  delivered  up  to  him,  subject  to  the 
plaintiff's  rights  on  appeal,  and  he  may  maintain  an  action  on  the  plaintiff's  under- 
taking for  the  damages  assessed,  as  sustained  by  reason  of  the  Avrit  of  attachment 
and  his  costs.  And  in  cases  where  real  estate  has  been  attached,  upon  the  entry 
of  final  judgment  in  favor  of  the  defendant  in  the  action,  either  on  the  merits  or  on 
discontinuance  or  dismissal,  or  on  satisfaction  of  a  plaintiff's  judgment,  the  clerk 
of  court  shall  certify  the  fact  of  such  judgment,  or  satisfaction,  and  on  filing  such 
certificate  with  the  register  of  deeds  in  any  county  in  which  lands  attached  in  the 
action  are  situated,  such  register  shall  enter  such  certificate  upon  the  records  of  his 
office,  in  satisfaction  of  the  lien  of  such  attachments.     [Stats.  1881,  ]>.  IGl.] 

§  2749. — When  the  plaintiff  shall  have  recovered  judgment  in  the  action,  the 
sheriff  or  officer  shall  satisfy  the  same  out  of  the  property  attached,  or  received 
from  any  garnishee  or  otherwise,  if  sufficient  therefor: 

1.  By  i^aying  over  to  such  plaintiff  all  money  attached  or  received  upon  sales 
of  iiroperty,  or  from  any  garnishee,  or  upon  any  debts  or  credits,  or  so  much 
thereof  as  shall  be  necessary. 

2.  By  selling,  under  such  execution  as  may  be  issued  on  such  judgment,  so 
much  of  the  attached  property,  real  or  personal,  as  shall  be  necessary  to  satisfy  the 
balance  unpaid,  according  to  the  provisions  regulating  sales  upon  execution;  ex- 
cept as  provided  in  subdivision  foiu"  hereof. 

3.  If  any  of  the  attached  property  belonging  to  the  defendant  shall  have  passed 
out  of  the  hands  of  the  sheriff  without  having  been  sold  or  converted  into  money, 
such  sheriff  shall  repossess  himself  of  the  same,  and  for  that  purpose  shall  have  all 
the  authority  which  he  had  to  seize  the  same  under  the  writ  of  attachment;  and 
any  i^erson  who  shall  willfully  conceal  or  withhold  such  property  from  the  sheriff, 
shall  be  liable  to  double  damages  at  the  suit  of  the  party  injm-ed. 

4.  Until  the  judgment  against  the  defendant  shall  be  paid,  the  sheriff  may  pro- 
ceed to  collect  the  evidences  of  debt  that  may  have  been  seized  or  attached  by  vir- 
tue of  the  writ  of  attachment,  or  that  may  have  been  delivered  up  by  any  person 
summoned  as  garnishee,  and  to  prosecute  any  bond  he  may  have  taken  in  the 
course  of  such  proceedings,  and  apply  the  proceeds  thereof  to  the  payment  of  the 
judgment  and  costs.  When  the  judgment  and  all  costs  of  the  proceedings  shall 
have  been  paid,  the  sheriff,  upon  reasonable  demand,  shall  deliver  over  to  the  de- 
fendant the  residue  of  the  property  attached,  or  that  may  have  been  received  from 
any  garnishee,  or  the  proceeds  thereof. 

§  2750.— The  actions  herein  authorized  to  be  brought  by  the  sheriff  or  officer 
may  be  prosecuted  by  the  plaintiff,  or  under  his  direction,  upon  the  delivery  by 
hini  to  the  sheriff  or  officer  of  an  undertaking,  with  two  suflBcient  sureties,  to  the 
effect  that  the  plaintiff  will  indemnify  him  for  all  damages,  costs  and  expenses 
thereon,  not  exceeding  two  hundred  and  fifty  dollars  in  any  one  action;  such  sure- 
ties shall,  when  required  by  the  sheriff  or  officer,  justify  by  making  an  affidavit 
that  each  is  a  householder,  and  worth  double  the  amount  of  the  penalty  named  in 
the  imdertaking,  over  and  above  all  debts  and  exemptions. 


718  WISCONSIN. 

§  2751. — If  the  property,  money,  credits  or  effects  of  any  defendant  in  an  action 
shall  be  seized  by  a  ■writ  of  attachment  issued  in  such  action,  and  such  defendant 
shall  die  pending  the  action,  or  after  judgment  and  before  execution  issued  thereon, 
and  satisfaction  thereof,  the  property,  money,  credits  and  effects  so  attached  shall 
be  applied  to  the  payment  of  the  judgment  rendered  in  such  action,  either  before  or 
after  the  death  of  such  defendant,  and  execution  may  be  issued  on  such  judgment, 
and  satisfied  out  of  the  property  so  attached,  in  the  same  manner  as  if  such  de- 
fendant were  living. 


CHAPTER  CXXV. 

OF   GAENISHMENT. 

§  2752. — Any  creditor  shall  be  entitled  to  proceed  by  garnishment,  in  the  circuit 
court  of  the  proper  county,  against  any  person  (except  a  municipal  corporation)  who 
shall  be  indebted  to,  or  have  any  property  whatever,  real  or  personal,  in  his  pos- 
session or  imder  his  control,  belonging  to  such  creditor's  debtor,  in  the  cases,  upon 
the  conditions  and  in  the  manner  prescribed  in  this  chapter.  The  term  plaintiff  is 
used  in  this  chapter  to  embrace  every  judgment  creditor,  and  the  term  defendant  a 
judgment  debtor. 

§  21m. — Either  at  the  time  of  the  issuing  of  the  summons,  or  at  any  time  there- 
after before  final  judgment,  in  any  action  to  recover  damages  founded  upon  con- 
tract, express  or  implied,  or  ujDon  judgment  or  decree,  or  at  any  time  after  the 
issuing,  in  any  case,  of  an  execution  against  property,  and  before  the  time  when  it 
is  retm-nable,  the  plaintiff,  or  some  person  in  his  behalf,  may  make  an  af&davit, 
stating  the  amount  of  the  plaintiff's  claim  against  the  defendant  or  defendants, 
over  and  over  all  effects,  and  stating  that  he  verily  believes  that  some  person  (nam- 
ing him)  is  indebted  to,  or  has  property,  real  or  personal,  in  his  possession  or  under 
Lis  control,  belonging  to  the  defendant  (or  either  or  any  of  the  defendants)  in  the 
action  or  execution  (naming  him),  and  that  such  defendant  has  not  property  liable 
to  execution  sufficient  to  satisfy  the  plaintiff's  demand.  And  that  the  indebted- 
ness or  property  mentioned  in  such  affidavit  is,  to  the  best  of  the  knowledge  and 
belief  of  the  person  making  such  affidavit,  not  by  law  exempt  from  seizure  or  sale 
upon  execution.  Any  number  of  garnishees  may  be  embraced  in  the  same  affi- 
davit, but  if  a  joint  liability  be  claimed  against  any,  it  shall  be  so  stated  in  siich 
affidavit,  and  the  garnishees  named  as  jointly  liable,  shall  be  deemed  jointly  pro- 
ceeded against;  otherwise  the  several  garnishees  shall  be  deemed  severally  pro- 
ceeded against.     [Stats.  1881,  p.  87] 

§  2754. — The  plaintiff  shall  annex  or  subjoin  to  such  affidavit  a  garnishee  sum- 
mons, which  shall  be  substantially  in  the  following  form: 

A.  B.  plaintiff,         \ 

vs.  (     Court, Coimty. 

C  D.,  defendant,  j  The  State  of  Wisconsin. — To  the  said  garnishee:  You  are 
E.  r. ,  garnishee.  /  hereby  summoned,  pursuant  to  the  annexed  affidavit,  as  gar- 
nishee of  the  defendant,  C  D. ,  and  required,  within  twenty  days  after  the  service 
of  this  summons  upon  you,  exclusive  of  the  day  of  service,  to  answer,  according  to 
law,  whether  you  are  indebted  to,  or  have  in  your  possession  or  under  j^our  con- 
trol, any  i^roperty,  real  or  personal,  belonging  to  such  defendant,  and  to  serve  a 

copy  of  your  answer  on  the  undersigned  at ,  in  the  county  of ;  and  in  case 

of  your  failure  so  to  do,  you  will  be  liable  to  further  proceedings,  according  to  law. 
Of  which  the  said  defendant  will  also  take  notice. 

L.  M.,  plaintiff's  attorney. 
P.  0.  address, , county.  Wis. 

§  275;>. — Such  garnishee  summons  and  affidavit  may  be  served  by  the  sheriff  of 
the  coiinty,  where  any  garnishee  or  defendant  may  be  found,  or  by  any  other  per- 
son not  a  party  to  the  action.  The  service  shall  be  made  and  the  same  returned, 
with  proof  of  the  service,  to  the  person  Avhoso  name  is  subscribed  thereto,  with  rea- 
sonable diligence.  The  person  subscribing  such  garnishee  .summons  may,  at  his 
option,  by  an  indorsement  thereon,  fix  a  time  for  the  service  thereof,  and  the 
Bervice  shall  then  be  made  accordingly. 

§  2756. — The  garnishee  summons  and  annexed  affidavit  shall  be  served  on  each 
of  the  several  garnishees  named,  in  the  manner  provided  in  sections  two  thousand 
six  hundred  and  thirty-six  and  two  thousand  six  hundred  and  thirty-seven,  for 
service  of  a  summons  in  an  action;  and,  except  where  service  of  the  summons  in 
the  action  is  made  without  the  state,  or  by  publication,  also  on  the  defendant  to 
the  action,  in  like  manner,  either  before,  or  within  ten  days  after,  service  on  a 
garnishee.    When  the  defendant  shall  Lave  appeared  in  the  action  by  an  attorney. 


WISCONSIN.  719 

Bach,  service  may  be  made  upon  such  attorney  or  upon  the  defendant.  Unless  the 
garnishee  summons  be  so  served  on  the  defendant  or  his  attorney,  or  the  proof  of 
eervice  on  the  garnishee  show  that,  after  due  diligence,  such  service  cannot  be 
made  within  the  state,  the  service  on  the  garnishee  shall  become  void  and  of  no 
effect  from  the  beginning. 

§  2757. — The  plaintiff  may  in  like  manner  subsequently  proceed,  within  the 
period  limited,  against  other  garnishees,  or  against  the  same  garnishees  after  they 
shall  have  once  been  discharged,  upon  a  new  affidavit,  if  he  shall  have  reason  tu 
believe  they  have  subsequently  become  liable;  and  he  may  summon  garnib|heen 
resident  in  other  counties  than  that  in  which  the  action  is  pending;  but  if  an  issue 
for  trial  shall  be  joined  between  the  plaintiff  and  such  garnishee,  the  court  may, 
on  motion,  change  the  place  of  trial  of  such  issue  to  the  county  of  the  garnishee's 
residence. 

§  2758. — If  the  plaintiff  shall  not  have  filed  in  the  clerk's  office,  within  ten  days 
after  service  of  a  garnishee  summons  upon  a  garnishee,  except  in  case  of  garnish- 
ment upon  execution,  his  complaint  duly  verified,  showing  the  amount  of  the 
indebtedness  of  the  defendant  in  the  action  to  him,  the  proceeding  against  the 
garnishee  shall  be  dismissed,  on  motion  of  the  defendant  or  garnishee,  with  costs, 
unless  the  court,  or  a  judge,  shall  in  discretion,  and  upon  terms,  permit  the  same 
to  stand. 

§2759. — Within  twenty  days  from  the  service  of  such  garnishee  summons, 
the  garnishee  may,  if  the  truth  warrant,  file  with  the  clerk  of  the  court  in  which  the 
action  is  pending,  and  serve  a  copy  thereof  upon  the  plaintiff,  his  aflidavit  in  the 
following  form,  substantially: 
A.  B.,  plaintiff,  ") 

vs.  (     Court,  County. 

C  D.,  defendant,  and      j     County,  ss. — E.  F.,  being  duly  sworn,  says,  that 

E.  F.,  garnishee.  )  on  the day  of A.  D,  18 — ,  he  was  served  with 

a  garnishee  summons  in  the  above  entitled  action;  that  he  was  then  and  is  now  in 
no  manner,  and  upon  no  account  whatever,  indebted  or  under  liability  to  the  de- 
fendant (naming  him),  and  that  he  then  had  and  now  has  in  his  possession,  or  under 
his  control,  no  real  estate  and  no  personal  property,  effects  or  credits,  of  any  de- 
scription whatever,  belonging  to  said  defendant,  or  in  which  he  has  any  interest; 
and  is  in  no  manner  liable  as  garnishee  in  this  action. 

Subscribed  and  sworn  to  before  me  this  day  of A.  D.,  18 — . 

Thereby  the  proceeding  against  such  garnishee  shall  be  deemed  discontinued^ 
and  the  plaintiff  shall  pay  the  garnishee  one  dollar  for  his  costs,  unless  within 
twenty  days  thereafter  the  plaintiff  serve  notice  on  such  garnishee,  that  he  elects 
to  take  issue  on  his  answer  to  the  garnishee  summons  and  will  maintain  him  to  be 
liable  as  garnishee.  In  which  case  the  issue  shall  stand  for  trial  as  a  civil  action, 
in  which  the  affidavit  on  the  part  of  the  plaintiff  shall  be  deemed  the  complaint, 
and  the  garnishee's  affidavit  the  answer  thereto. 

§  2760.  — Unless  the  garnishee  shall  make  the  affidavit  provided  for  in  the  pre- 
ceding section,  he  shall,  within  twenty  days  from  the  service  of  the  garnishee  sum- 
mons, file  and  serve  in  like  manner  an  affidavit,  in  which  he  shall  state: 

1.  Whether  he  was,  at  the  time  of  the  service  of  the  garnishee  summons,  or  has 
since  become,  indebted  or  under  any  liability  to  the  defendant  named  in  the  gar- 
nishee summons,  in  any  manner  or  upon  any  account;  specifying,  if  indebted  or 
liable,  the  amount,  the  interest  thereon,  the  manner  in  which  evidenced^  when 
payable,  whether  an  absolute  or  contingent  liability,  and  all  the  facts  and  circum- 
stances necessary  to  a  complete  understanding  of  such  indebtedness  or  liability. 
When  the  garnishee  shall  be  in  doubt  respecting  any  such  liability  or  indebtedness, 
he  may  set  forth  all  the  facts  and  circumstances  concerning  the  same,  and  submit 
the  question  to  the  court. 

2.  Whether  he  held  at  the  time  aforesaid,  or  now  holds,  the  title  or  possession 
of  any  real  estate,  or  any  interest  in  land  of  any  description,  or  of  any  personal 
property,  effects  or  credits,  or  any  instruments  or  papers  relating  to  any  such,  be- 
longing to  the  defendant,  or  in  which  he  is  in  any  wise  interested.  And  if  he  shall 
admit  any  such,  or  be  in  doubt  respecting  the  same,  he  shall  set  forth  a  description 
of  such  pro]5erty,  and  all  the  facts  and  circumstances  concerning  the  same,  and  the 
title,  interest  or  claim  of  the  defendant  in  or  to  the  same. 

3.  If  he  shall  claim  any  set-off,  or  defense,  to  any  indebtedness  or  liability,  or 
any  lien  or  claim  to  such  property,  he  shall  set  forth  the  facts  and  circumstances 
thereof  fully. 

4.  He  may  state  any  claim  of  exemption  from  execution,  on  the  part  of  the  de- 
fendant, or  other  objection,  known  to  him,  against  the  right  of  the  plaintiff  to 
apply  upon  his  demand  the  indebtedness  or  property  disclosed. 


720  ■WISCONSIN. 

5.  If  lie  shall  disclose  any  indebtedness,  or  tlie  possession  of  any  property  to 
which  the  defendant,  and  any  other  person  as  well,  make  claim,  he  may  set 
forth  the  names  and  residences  of  such  other  claimants,  and,  so  far  as  known,  the 
nature  of  their  claims. 

§  2761. — If  any  garnishee,  havin,^  been  duly  summoned,  shall  fail  to  serve  his 
affidavit,  as  required  in  the  preceding  sections,  the  court  may  render  judgment 
against  him  for  the  amount  of  the  judgment  which  the  plaintiff  shall  recover 
against  the  defendant  in  the  action  for  damages  and  costs,  together  with  the  costs 
of  such  garnishee  action.  Such  garnishee  may  also  be  proceeded  against,  as  for  a 
contempt,  according  to  the  provisions  of  chapter  one  hundred  and  fifty. 

§  27G2. — In  case  the  answer  of  the  garnishee  shall  show  indebtedness  to  the  de- 
fendant, he  may  pay  the  amount  thereof,  less  three  dollars  for  his  costs,  to  the  offi- 
cer having  a  writ  of  attachment  in  the  action,  if  any,  or  otherwise  to  the  clerk  of 
the  court;  or,  if  the  garnishment  be  in  aid  of  an  execution,  to  the  sheriff  having 
the  execution;  and  either  such  officer  shall  give  him  a  receipt,  sj^ecifying  the  facts, 
and  such  receipt  shall  be  a  complete  discharge  of  all  liability  to  any  party  for  the 
amount  so  paid.  If  the  answer  disclose  any  money,  credits  or  other  property,  real 
or  personal,  in  the  jjossession  or  under  the  control  of  the  garnishee,  the  officer  hav- 
ing a  vrcit  of  attachment,  or  an  execution,  if  any,  may  levy  upon  the  interest  of 
the  defendant  in  the  same;  otherwise  the  garnishee  shall  hold  the  same  until  the 
order  of  the  court  thereon. 

§  27G3. — The  answer  of  the  garnishee  shall,  in  all  cases,  be  conclusive  of  the 
truth  of  the  facts  thei-eiu  stated,  unless  the  plaintiff  shall,  within  twenty  days, 
serve  upon  the  garnishee  a  notice,  in  ^vriting,  that  he  elects  to  take  issue  on  his 
answer;  in  which  case  the  issue  shall  stand  for  trial  as  a  civil  action,  in  which  the 
affidavit  on  the  part  of  the  plaintiff  shall  be  deemel  the  complaint,  and  the  gar- 
nishee's affidavit  the  answer  thereto.  The  plaintiff  may  in  all  cases  move  the 
court,  upon  the  answer  of  the  garnishee,  and  of  the  defendant,  if  he  shall  also  an- 
swer, for  such  judgment  as  he  shall  be  entitled  to  thereon;  but  any  such  judgment 
shall  be  uo  bar  beyond  the  facts  stated  in  such  answers. 

§  2764. — The  answer  of  a  corporation  summoned  as  a  garnishee  maj-be  made  by 
any  officer  thereof,  and  of  any  other  garnishee,  by  any  agent  or  attorney,  in  his 
behalf,  who  shall  be  acquainted  with  the  facts. 

§  27C5. — The  defendant  may,  in  all  cases,  by  answer,  duly  verified,  to  be  served 
within  twenty  days  from  the  service  of  the  garnishee  summons  on  him.  defend  the 
proceeding  against  any  garnishee,  upon  the  ground  that  the  indebtedness  of  the 
garnishee,  or  any  property  held  by  him,  is  exempt  from  execution  against  such  de- 
fendant, or  for  any  other  reason  is  not  liable  to  garnishment,  or  upon  any  ground 
upon  which  a  garnishee  might  defend  the  same;  and  may  participate  in  the  trial 
of  any  issue  between  the  plaintiff  and  garnishee  for  the  protection  of  his  interests. 
And  the  garnishee  may,  at  his  option,  defend  the  principal  action  for  the  defend- 
ant, if  the  latter  does  not,  but  shall  be  under  no  obligation  so  to  do. 

§  2766. — The  proceeding  against  a  garnishee  shall  be  deemed  an  action,  by  the 
plaintiff  against  the  garnishee  and  defendant  as  parties  defendant,  and  all  the  pro- 
visions of  law  relating  to  proceedings  in  civil  actions  at  issue,  including  examina- 
tion of  the  parties,  amendments  and  relief  from  default  or  proceedings  taken,  and 
api^eals,  and  all  provisions  for  enforcing  judgments,  shall  be  applicable  thereto; 
but  when  the  garnishment  is  not  in  aid  of  an  execution,  no  trial  shall  be  had  of 
the  garnishee  action  until  the  plaintiff  shall  have  judgment  in  the  principal  action, 
although  it  may  be  noticed  for  trial;  and  if  the  defendant  have  judgment,  the  gar- 
nishee action  shall  be  dismissed  with  costs.  The  coui't  shall  render  such  judgment 
in  all  cases  as  shall  be  just  to  all  the  parties,  and  j)roperly  protect  their  respective 
interests,  and  may  adjudge  the  recovery  of  any  indebtedness,  the  conveyance, 
transfer,  or  delivery  to  the  sheriff,  or  any  officer  api^ointed  by  the  judgment,  of 
any  real  estate  or  personal  property  disclosed,  or  found  to  be  liable  to  be  applied  to 
the  plaintiff's  demand,  or  by  the  judgment  pass  the  title  thereto;  and  may  therein, 
or  by  its  order,  when  proper,  direct  the  manner  of  making  sale,  and  of  disposing  of 
the  proceeds  thereof,  or  of  any  money  or  other  thing  paid  over  or  delivered  to  the 
clerk  or  officer.  The  judgment  against  a  garnishee  shall  acquit  and  discharge  him 
from  all  demands  by  the  defendant,  or  his  representatives,  for  all  money,  goods, 
effects  or  credits,  paid,  delivered  or  accounted  for,  by  the  garnishee,  by  force  of 
Buch  judgment. 

§  2767. — AYhen  the  answer  of  the  garnishee  shall  disclose  that  any  other  person 
than  the  defendant  claims  the  indebte  In-ss  or  property  in  his  hands,  and  the  name 
and  residence  of  such  claimant,  the  court  may,  on  motion,  order  that  such  claimant 
be  interpleaded  as  a  defendant  to  the  garnishee  action,  ai^  that  notice  thereof,  set- 


WISCONSIN.  721 

ting  forth  the  facts,  with  a  copy  of  such  order,  in  such  form  as  the  court  shall  di- 
rect, be  served  upon  him,  and  that  after  such  service  shall  have  been  made,  the 
garnishee  may  pay  or  deliver  to  the  officer  or  the  clerk  such  indelitedness,  or  prop- 
erty, and  have  a  receipt  therefor,  which  shall  be  a  complete  discharge  from  all  lia- 
bility to  any  party  for  the  amount  so  paid,  or  property  so  delivered.  Such  notice 
shall  be  served  in  the  manner  required  for  service  of  a  summons  in  a  civil  action, 
and  may  be  made  without  the  state,  or  by  publication  thereof,  if  the  order  shall  so 
direct.  Upon  such  service  being  made,  such  claimant  shall  be  deemed  a  defend- 
ant to  the  garnishee  action,  and,  within  twenty  days,  shall  answer,  setting  forth 
his  claim,  or  any  defense  which  the  garnishee  might  have  made.  In  case  of  de- 
fault, judgment  may  be  rendered,  which  shall  conclude  any  claim  upon  the  part  of 
such  defendant. 

§  2768. — From  the  time  of  the  service  of  the  suramons  upon  the  garnishee,  he 
shall  stand  liable  to  the  plaintiff  to  the  amount  of  the  property,  moneys,  credits 
and  effects  in  his  possession,  or  under  his  control,  beiunging  to  the  defendant,  or  in 
which  he  shall  be  interested,  to  the  extent  of  his  right  or  interest  therein,  and  of 
all  debts  due  or  to  become  due,  to  the  defendant,  except  such  as  may  he,  by  law, 
exempt  from  execution.  Any  property,  moneys,  credits  and  effects  held  Ijy  a  con- 
vej^ance,  or  title,  void  as  to  the  creditors  of  the  defendant,  shall  be  embraced  in 
such  liability.  In  case  such  moneys,  credits  and  effects,  in  the  possession  or  under 
the  control  of  the  garnishee,  shall  exceed  the  amount  of  the  plaintiff's  claim,  the 
garnishee  shall  stand  liable  to  the  plaintiff  only  for  the  amount  of  the  plaintiff's 
claim  as  disclosed  by  his  affidavit  provided  for  in  section  two  thousand  seven  hun- 
dred and  fifty-three,  together  with  such  further  amount  as  shall  be  equal  to  all 
costs  and  damages  which  the  plaintiff  may  recover  in  the  action  and  garnishee 
proceedings.     [Stats.  1881,  p.  88.] 

§  2709. — No  judgment  shall  be  rendered  upon  a  liability  of  the  garnishee  arising 
either: 

1.  By  reason  of  his  having  drawn,  accepted,  made,  indorsed  or  guaranteed  any 
negotiable  bill,  draft,  note,  or  other  security. 

2.  By  reason  of  any  money,  or  other  thing,  received  or  collected  by  him  as 
sheriff,  or  other  officer,  by  force  of  an  execution,  or  other  legal  process,  in  favor  of 
the  defendant. 

3.  By  reason  of  any  money  in  his  hands,  as  a  public  officer,  and  for  which  he  is 
accountable  to  the  defendant  merely  as  such  officer. 

4.  By  reason  of  any  money,  or  other  thing,  owing  from  him  to  the  defendant, 
unless,  before  judgment  against  the  defendant,  it  shall  have  become  due  absolutely 
and  without  depending  on  any  future  contingency.  Judgment  may  be  given  for 
any  money,  or  other  thing  owing,  although  it  has  not  become  payable,  in  which 
case  the  garnishee  shall  not  be  required  to  pay  or  deliver  it  before  the  time  ap- 
pointed by  the  contract. 

§  2770. — No  action  shall  be  commenced  by  the  defendant,  or  his  assignee,  against 
a  garnishee  upon  any  claim  or  demand  liable  to  garnishment,  or  to  recover  any 
projierty  garnished,  or  execution  be  issued  upon  a  judgment  in  favor  of  defendant 
against  such  garnishee,  subsequent  to  the  service  of  the  garnishee  summons  upon 
him,  until  the  termination  of  the  garnishee  action;  and  if  an  action  shall  have  been 
commenced  or  an  execution  issued,  it  shall  be  stayed  by  the  court,  or  a  judge 
thereof,  upon  the  garnishee's  application;  excejit  that  upon  cause  shown,  the  court, 
or  a  judge,  may  by  order  permit  the  commencement  of  such  an  action,  or  the  issue 
of  an  execution,  or  the  further  prosecution  of  one  stayed. 

§  2771. — The  defendant  may,  at  anytime  after  the  complaint  is  filed,  and  before 
judgment,  file  with  the  clerk  of  the  court  an  undertaking,  executed  by  at  least  two 
sureties,  resident  freeholders  of  the  state,  to  the  effect  that  they  will,  on  demand, 
pay  to  the  plaintiff  the  amount  of  the  judgment,  with  all  costs  that  may  be  recov- 
ered against  such  defendant  in  the  action,  not  exceeding  a  sum  si^ecified,  which 
sum  shall  be  not  less  than  double  the  amount  demanded  by  the  comi>laint  on  file, 
or  in  such  less  sum  as  the  court  shall,  upon  application,  direct.  The  sureties  shall 
justify  their  responsibility  by  affidavit  annexed,  stating  a  sum  which  each  is  worth, 
in  property  within  this  state,  over  and  above  all  his  debts  and  liabilities  and  prop- 
erty exempt  from  execution,  the  aggregate  of  which  sums  shall  be  double  the 
amount  specified  in  the  undertaking.  The  defendant  shall  serve  a  copy  of  such  un- 
dertaking, with  a  notice  where  and  when  tlie  same  was  filed,  on  the  plaintiff. 
Within  three  days  after  the  receipt  thereof,  the  i^laintiff  shall  give  notice  to  the 
defendant  that  he  excepts  to  the  sufficiency  of  the  sureties,  or  he  shall  be  deemed 
to  have  waived  all  objections  to  them.  When  the  plaintiff  excepts,  the  sureties 
shall  justify  in  like  manner  as  bail  upon  an  arrest,  and  the  provisions  of  sections 
two  thousand  seven  hundred  and  fom-,  two  thousand  seven  hundred  and  five  and 
two  thousand  seven  hundred  and  six  shall  be  applicable  thereto.  Thereafter  all 
II  Attacumbnt— 21. 


722  WYOMING. 

the  gramishees  shall  be  discharged,  and  the  garnishment  proceedings  shall  be 
deemed  discontinued,  and  any  money  or  property,  j)aid  or  delivered  to  any  officer, 
shall  be  siirrendered  to  the  person  entitled  thereto,  and  the  costs  shall  be  taxable 
as  disbursements  of  the  plaintiff  in  the  action,  if  he  recovers. 

§  2772. — In  case  of  the  trial  of  an  issue  between  the  plaintiff  and  any  garnishee, 
costs  shall  he  awarded  to  the  plaintiff  and  against  the  garnishee,  in  addition  to  his 
liabilit^^  if  the  plaintiff  recover  more  than  the  garnishee  admitted  by  his  answer; 
and  if  he  do  not,  the  garnishee  shall  recover  costs  of  the  plaintiff.  In  all  other 
cases,  under  this  chapter,  not  expressly  provided  for,  the  court  may  award  costs  in 
favor  of  or  against  any  party,  in  its  discretion.  When  there  is  no  issue  for  trial, 
and  any  liability  on  the  part  of  the  garnishee  is  disclosed,  the  costs  of  the  garnish- 
ment proceedings  shall  be  taxed  for  the  plaintiff,  if  he  recovers,  as  disbursements 
in  the  principal  action. 

Appeals  from  order  vacating  attachment — Sec.  3061. 
Liens  on  logs— Stats.  1881,  p.  424;  Stats.  1882,  p.  985. 
Against  ships — Sees.  3351-3356,  and  Stats.  1881,  p.  79. 
Justices  of  the  Peace — Sees.  3701-3732. 

Exemptions— Chap.  310,  sec.  2982;  Stats.  1879,  p.  66;  Stats.  1883,  p.  956;  Stats. 
1882,  p.  956. 


WYOMING. 

[Compiled  Laws,  1876,  and  subsequent  Statutes.] 


ARTICLE  I. 

ATTACHMENT'. 


§  187. — The  plaintiff  in  a  civil  action  for  the  recovery  of  money  may,  at  or  after 
the  commencement  thereof,  have  an  attachment  against  the  property  of  the  de- 
fendant, and  upon  the  grounds  herein  stated: 

First.  When  the  defendant  or  one  of  the  defendants  is  a  foreign  corporation,  or 
a  non-resident  of  this  territory;  or. 

Second.   Has  absconded  with  the  intent  to  defraud  his  creditors;  or. 
Third.    Has  left  the  county  of  his  residence  to  avoid  the  service  of  a  summons;  or, 
Fourth.    So  conceals  himself  that  a  summons  cannot  be  served  upon  him;  or, 
Fifth.    Is  about  to  remove  his  property,  or  a  part  thereof,  out  of  the  jurisdic- 
tion of  the  court,  with  the  intent  to  defraud  his  creditors;  or, 

Sixth.  Is  about  to  convert  his  property,  or  a  part  thereof,  into  money,  for  the 
purpose  of  placing  it  beyond  the  reach  of  his  creditors;  or. 

Seventh.    Has  property,  or  rights  in  action,  which  he  conceals;  or,  _ 
Eif/hth.    Has  assigned,  removed  or  disposed  of,  or  is  about  to  dispose  of,  his 
property,  or  a  part  thereof,  with  the  intent  to  defraud  his  creditors;  or, 

ninth.  Fraudulently  contracted  the  debt  or  incmred  the  obligation  for  which 
suit  is  about  to  be  or  has  been  brought.  But  an  attachment  shaU  not  be  granted 
on  the  ground  that  the  defendant  is  a  foreign  corporation  or  a  non-resident  of  this 
territory,  for  any  claim  other  than  a  debt  or  demand  arising  upon  contract,  judg- 
ment or  decree;  or. 

Tenth.  In  all  cases  not  exceeding  two  hundred  and  fifty  dollars,  in  which  the 
debt  is  not  otherwise  secured,  and  which  has  not  been  paid  when  due  and  within 
ten  days  thereafter  on  demand.  This  subdivision  not  to  apply  to  causes  of  action 
already  accrued. 

§  188. — An  order  of  attachment  shall  be  made  by  the  clerk  of  the  court  in  which 
the  action  is  brought,  in  any  case  mentioned  in  the  preceding  section,  when  there 
is  filed  in  his  office  an  affidavit  of  the  plaintiff,  his  agent  or  attorney,  stating: 

First.    The  nature  of  the  plaintiff's  claim. 

Second.   That  it  is  just. 

Third.  The  amoimt  which  the  affiant  believes  the  plaintiff  ought  to  recover. 


WYOMING.  723 

Fourth.  The  existence  of  some  one  of  the  grounds  for  an  attachment  enumerated 
in  the  preceding  section,  or  that  the  affiant  has  good  reason  to  believe  and  does 
believe  that  some  one  of  said  grounds  (stating  what  one)  exists. 

§  189. — When  the  ground  of  the  attachment  is,-that  the  defendant  isa  foreign 
corporation,  the  order  of  attachment  may  be  issued  without  an  undertaking. 

§190. — In  all  other  cases,  the  order  of  attachment  shall  not  be  issued  by  the 
clerk  until  there  has  been  executed  in  his  office,  by  one  or  more  sufficient  sureties 
of  the  plaintiff,  to  be  approved  by  the  clerk,  an  undertaking  not  exceeding  double 
the  amount  of  the  plaintiff's  claim,  to  the  effect  that  the  plaintiff  shall  pay  the 
defendant  all  damages  which  he  may  sustain  by  reason  of  the  attachment,  if  the 
order  be  wrongfully  obtained. 

§  191. — The  order  of  attachment  shall  be  directed  and  delivered  to  the  sheriff. 
It  shaU  require  him  to  attach  the  lands,  tenements,  goods,  chattels,  stocks  or  inter- 
est in  stocks,  rights,  credits,  moneys  and  effects  of  the  defendant  in  his  county, 
not  exempt  by  law  from  being  applied  to  the  payment  of  the  plaintiff's  claim,  or 
so  much  thereof  as  will  satisfy  the  i^laintiff's  claim,  to  be  stated  in  the  order,  as  in 
the  affidavit,  and  the  probable  costs  of  the  action,  not  exceeding  fifty  dollars. 

§  192. — Orders  of  attachment  may  be  issued  to  the  sheriffs  of  different  counties; 
and  several  of  them  may,  at  the  option  of  the  plaintiff,  be  issued  at  the  same  time, 
or  in  succession;  but  such  only  as  have  been  executed  shall  be  taxed  in  the  costs, 
unless  otherwise  directed  by  the  court. 

§193.— The  return  day  of  the  order  of  attachment,  when  issued  at  the  com- 
mencement of  the  action,  shall  be  the  same  as  that  of  the  summons;  when  issued 
afterward,  it  shall  be  twenty  days  after  it  issued. 

§  194. — When  there  are  several  orders  of  attachment  against  the  same  defend- 
ant, they  shall  be  executed  in  the  order  in  which  they  were  received  by  the  sheriff. 

§  195. — The  order  of  attachment  shall  be  executed  by  the  sheriff  without  delay. 
He  shall  go  to  the  place  where  the  defendant's  property  may  be  found,  and  there, 
in  the  presence  of  two  householders  of  the  county,  declare  that,  by  virtue  of  said 
order,  he  attaches  said  property  at  the  suit  of  such  plaintiff;  and  the  officer,  with 
said  householders,  who  shall  first  be  sworn  or  affirmed  by  the  officer,  shall  make  a 
true  inventory  and  appraisement  of  all  the  property  attached,  which  shall  be  signed 
by  the  officer  and  householders,  and  returned  with  the  order. 

§  196. — Where  the  property  attached  is  real  property,  the  officer  shall  leave  with 
the  occupant  thereof,  or,  if  there  be  no  occupant,  in  a  conspicuous  place  thereon, 
a  copy  of  the  order. 

Where  it  is  personal  property,  and  can  be  come  at,  he  shall  take  the  same  into 
his  custody,  and  hold  it  subject  to  the  order  of  the  court. 

§  197.— The  sheriff  shall  deliver  the  property  attached  to  the  person  in  whose 
possession  it  was  found,  upon  the  execution  by  such  person,  in  the  presence  of  the 
sheriff,  of  an  undertaking  to  the  plaintiff,  with  one  or  more  sufficient  sureties,  resi- 
dent in  the  county,  to  the  effect  that  the  parties  to  the  same  are  bound,_  in  double 
the  appraised  value  thereof,  that  the  property,  or  its  appraised  value  in  money, 
shall  be  forthcoming  to  answer  the  judgment  of  the  court  in  the  action;  but  if  it 
shall  appear  to  the  court  that  any  part  of  said  property  has  been  lost  or  destroyed 
by  unavoidable  accident,  the  value  thereof  shall  be  remitted  to  the  person  so  bound. 

§  198.— ^\^len  the  plaintiff,  his  agent  or  attorney,  shall  make  oath,  in  -writing, 
that  he  has  good  reason  to,  and  does,  believe  that  any  j^erson  or  corporation,_  in 
said  affidavit  named,  has  property  of  the  defendant  in  his  possession  (describing 
the  same),  if  the  officer  cannot  get  possession  of  such  property,  he  shall  leave  with 
such  garnishee  a  copy  of  the  order  of  attachment,  with  a  wi-itten  notice  that  he 
appear  in  court  and  answer,  as  provided  in  section  two  hiindred  and  twelve.  If  the 
garnishee  shall  not  reside  in  the  county  in  which  the  order  of  attachment  shall  be 
issued,  the  process  shall  be  served  by  the  proper  officer  of  the  county  in  which  the 
garnishee  shall  reside,  and  the  answer  of  the  garnishee  shall  be  made  before  the 
clerk  of  the  court  of  the  proper  county  in  which  the  garnishee  may  reside,  within 
the  time  required  for  the  filing  of  answers  by  garnishees.  Any  special  examination 
of  such  garnishee  which  may  be  ordered  by  the  court  shall  be  made  in  the  county 
in  which  he  may  reside;  and  should  suit  be  lirought  against  such  garnishee,  under 
the  provisions,  of  section  two  hundred  and  sixteen  of  this  act,  such  suit  shall  be 
brought  in  the  county  in  which  the  garnishee  shall  reside.  The  clerk  of  the  court, 
before  whom  the  answer  aforesaid  shall  be  made,  shall  transmit  the  same  to  the 
clerk  of  the  court  in  which  the  suit  shall  be  commenced,  in  the  same  manner  as 
depositions  are  required  to  be  directed  and  transmitted,  and  shall  receive  for  his 


724  "VNTOMING. 

services  such  fees  as  are  allo\ved  by  law  for  taking  depositions,  and  to  clerks  for 
furnishing  certificates,  with  their  seals  of  office  attached.  In  all  cases  in  which 
the  garnishee  shall  admit  an  indebtedness  to  the  defendant,  and  the  court  shall 
order  the  payment  of  the  same,  or  any  part  thereof,  to  the  plaintiff,  if  the  garnishee 
shall  not  pay  the  same  according  to  such  order,  execution  may  issue  thereon  as  upon 
judgments  for  the  payments  of  money.  The  service  of  process  upon  a  sheriff,  cor- 
oner, constable,  master  commissioner,  marshal  of  an  incorporated  city  or  village, 
or  other  officer  having  any  money,  claim,  or  other  property  of  the  defendant  in 
his  possession,  or  in  which  the  defendant  may  have  an  interest,  shall  bind  the  same 
from  the  time  of  such  service,  and  shall  be  a  legal  excuse  to  such  officers,  to  the 
extent  of  the  demand  of  the  plaintiff,  for  not  paying  such  money  or  delivering 
such  claim  or  property  to  the  defendant,  as  by  law,  or  the  terms  of  the  process  in 
his  hands,  he  would  otherwise  be  bound  to  do. 

§  199. — The  copy  of  the  order  and  notice  shall  be  served  upon  the  garnishee,  as 
follows:  If  he  be  a  person,  they  shall  be  served  upon  him  personally,  or  left  at 
his  usual  place  of  residence;  if  a  cori^oration,  they  shall  be  left  with  the  president, 
or  other  head  of  the  same,  or  secretary,  or  cashier,  or  managing  agent  thereof. 

§  200. — Different  attachments  of  the  same  property  may  be  made  by  the  same 
officer,  and  one  inventory  and  appraisement  shall  be  sufficient,  and  it  shall  not  be 
necessary  to  return  the  same  with  more  than  one  order. 

§  201. — When  the  property  is  under  attachment,  it  shall  be  attached  under  sub- 
sequent orders,  as  follows: 

Fi7'st.  If  it  be  real  property,  it  shall  be  attached  in  the  manner  prescribed  in 
section  one  hundred  and  ninety-six. 

Second.  If  it  be  i^ersonal  property,  it  shall  be  attached  as  in  the  hands  of  the 
officer,  and  subject  to  any  previous  attachment. 

Third.  If  the  same  person  or  corporation  be  made  a  garnishee,  a  copy  of  the 
order  and  notice  shall  be  left  with  him,  in  the  manner  prescribed  in  section  one 
hundred  and  ninety-nine. 

§  202. — The  officer  shall  return  upon  every  order  of  attachment,  what  he  has 
done  imder  it.  The  return  must  show  the  property  attached,  and  the  time  it  was 
attached.  When  garnishees  are  served,  their  names,  and  the  time  each  was  served, 
must  be  stated.  The  officer  shall,  also,  return  with  the  order  aU  undertakings  given 
under  it. 

§  203. — An  order  of  attachment  binds  the  property  attached,  from  the  time  of 
service,  and  the  garnishee  shall  stand  liable  to  the  plaintiff  in  attachment  for  all 
property,  moneys  and  credits  in  his  hands,  or  due  from  him  to  the  defendant,  from 
the  time  he  is  served  with  the  written  notice  mentioned  in  section  one  him^dred  and 
ninety-eight;  but  where  the  i^roj^erty  is  attached  in  the  hands  of  a  consignee,  his 
lien  thereon  shall  not  be  affected  by  the  attachment. 

§  204.  ^The  court  or  any  judge  thereof,  during  vacation,  may,  on  the  applica- 
tion of  the  plaintiff,  and  on  good  cause  shown,  appoint  a  receiver,  who  shall  taks 
an  oath  faithfully  to  discharge  his  duty,  and  shall  give  an  undertaking  to  the  ter- 
ritory in  such  sum  as  the  court  or  judge  may  direct,  and  T\"ith  such  secm-ity  as  shall 
be  approved  by  the  clerk  of  such  court,  for  the  faithful  performance  of  his  duty,  as 
such  receiver,  and  to  pay  over  all  money,  and  account  for  all  property,  which  may 
come  into  his  hands  by  ^'irtue  of  his  appointment,  at  such  times  and  in  such  man- 
ner as  the  court  may  direct. 

§  20-5. — Such  receiver  shall  take  possession  of  all  notes,  due-bills,  books  of  ac- 
count, accounts,  and  all  other  evidences  of  debt,  that  have  been  taken  by  the  sheriff 
or  other  officer,  as  the  property  of  the  defendant  in  attachment,  and  shall  proceed 
to  settle  and  collect  the  same.  For  that  ptupose,  he  may  commence  and  main- 
tain actions  in  his  own  name  as  such  receiver;  but  in  such  actions  no  right  of 
defense  shall  be  impaired  or  affected. 

§  206.—  Such  receiver  shall  forthmth  give  notice  of  his  appointment  to  the  per- 
sons indebted  to  the  defendant  in  attachment.  The  notice  shall  be  written  or 
printed,  and  shall  be  served  on  the  debtor  or  debtors,  bj'  copy,  personally,  or  by 
copy  left  at  the  residence;  and  from  the  date  of  such  service,  the  debtors  shall 
stand  liable  to  the  plaiatiff  in  attachment  for  the  amount  of  moneys  and  creiUts 
in  then"  hands,  or  due  from  them  to  the  defendant  in  attachment,  and  shall  account 
therefor  to  the  receiver. 

§  207. — Such  receiver  shall,  when  required,  report  his  proceedings  to  the  court, 
and  hold  all  moneys  collected  by  him,  unJ  property  which  may  come  into  his  hands, 
subject  to  the  order  of  the  court. 


WYOMING.  725 

§  208. — Wliere  a  receiver  Ls  not  appointed  hj  the  court  or  a  judge  thereof,  as 
provided  in  section  two  Lundi-ed  and  four,  the  sheriff,  or  other  officer  attaching  the 
proi)erty,  shall  have  all  the  powers  and  perform  all  the  duties  of  a  receiver  ap- 
pointed by  the  court  or  a  judge,  and  may,  if  necessary,  commence  and  maintain 
actions  in  his  own  name,  as  such  officer.  He  may  be  required  to  give  seciu-ity 
other  than  his  official  undertaking. 

§  209.  — The  court  shall  make  proper  orders  for  the  preservation  of  the  property 
during  the  pendency  of  the  suit.  It  may  direct  a  sale  of  property,  when,  because 
of  its  perisliable  natm-e,  or  the  costs  of  keeping  it,  a  sale  will  be  for  the  benefit 
of  the  parties.  In  vacation,  such  sale  may  be  ordered  by  the  judge  of  the  court. 
The  sale  shall  be  public,  after  such  advertisement  as  is  prescribed  for  the  sale  of 
like  property  on  execution,  and  shall  be  made  in  such  manner,  and  ui)on  such  tenns 
of  credit,  with  security,  as  the  court  or  judge,  having  regard  to  the  proljaljle  dura- 
tion of  the  action,  may  direct.  The  proceeds,  if  collected  by  the  sheriff,  with  all 
the  moneys  received  by  him  for  garnishees,  shall  be  held  and  paid  over  by  him, 
under  the  same  requirement  and  responsibilities  of  himself  and  siu-eties  as  are  pro- 
vided in  respect  to  money  deposited  in  lieu  of  bail. 

§  210. — If  the  defendant,  or  other  person  on  his  behalf,  at  any  time  before 
judgment,  cause  an  tmdertaldng  to  be  executed  to  the  plaintiff,  by  one  or  more 
sufficient  sureties,  resident  in  the  county,  to  be  appi'oved  by  the  court,  in  double 
the  amount  of  the  plaintiff's  claim,  as  stated  in  his  affidavit,  to  the  effect  that  the 
defendant  shall  perform  the  judgonent  of  the  com-t,  the  attachment  in  such  action 
shall  be  discharged,  and  restitution  made  of  any  iiroi^erty  taken  under  it,  or  the 
proceeds  thereof.  Such  undertaking  shall  also  discharge  the  liability  of  a  garnishee 
in  such  action  for  any  property  of  the  defendant  in  his  hands. 

§  211. — The  undertaking  mentioned  in  the  last  section,  may,  in  vacation,  be  exe- 
cuted in  the  presence  of  the  sheriff  having  the  order  of  attachment  in  his  hands, 
or,  after  the  return  of  the  order,  before  the  clerk,  with  the  same  effect  as  if  exe- 
cuted in  court;  the  sureties  in  either  case  to  be  ax)proved  by  the  officer  before  whom 
the  undertaking  is  executed. 

§212. — The  garnishee  shall  a2:ipear  as  follows:  If  the  order  of  attachment  be 
returned  during  a  term  of  the  court,  he  shall  appear  at  that  term;  if  the  order  be  re- 
turned during  vacation,  he  shall  apjiear  at  the  term  next  after  its  return.  He 
shall  appear  and  answer,  under  oath,  all  questions  put  to  him  touching  the 
property,  of  every  description,  and  credits,  of  the  defendant,  in,  his  possession  or 
under  his  control,  and  he  shall  disclose  truly  the  amount  owing  by  him  to  the  de- 
fendant, whether  due  or  not;  and  in  case  of  a  corporation,  any  stock  therein  held 
by  or  for  the  benefit  of  the  defendant,  at  or  after  the  service  of  notice. 

§  21.3. — A  garnishee  may  j)ay  the  money  owing  to  the  defendant  by  him,  to  the 
sheriff  having  the  order  of  attachment,  or  into  the  court.  He  shall  be  dischai-ged  from 
liability  to  the  defendant  for  any  money  so  paid,  not  exceeding  the  plaintiff's  claim. 
He  shall  not  be  subjected  to  costs  beyond  those  caused  by  his  resistance  of  the 
claims  against  him;  and  if  he  disclose  the  i>roperty  in  his  hands,  or  the  true  amount 
owing  by  him,  and  deliver  or  pay  the  same,  according  to  the  order  of  the  court,  he 
shall  be  allowed  his  costs. 

§  214. — If  the  garnishee  do  not  appear  in  court  and  answer,  as  required  by 
section  tvi^o  hunch-ed  and  twelve,  the  coiu't  may  proceed  against  him  by  attach- 
ment as  for  a  contempt. 

§  21.5. — If  the  garnishee  appear  and  answer,  and  it  is  discovered  on  his  exam- 
ination, that  at  or  after  the  service  of  the  order  of  attachment  and  notice  upon 
him,  he  was  possessed  of  any  property  of  the  defendant,  or  was  indebted  to  him, 
the  court  may  order  the  delivery  of  such  property  and  the  jjayment  of  the  amount 
owing  by  the  garnishee  into  the  com't;  or  the  court  may  permit  the  garnishee  to 
retain  the  property  or  the  amount  owing,  upon  the  execution  of  an  undertaking 
to  the  plaintiff,  bj'  one  or  more  sufficient  sureties,  to  the  effect  that  the  amount 
shall  be  paid  or  the  pro^jerty  forthcoming,  as  the  court  may  direct. 

§  216. — If  the  garnishee  fail  to  appear  and  answer,  or  if  he  appear  and  answer, 
and  his  disclosure  is  not  satisfactory  to  the  plaintiff,  or  if  he  fail  to  comply  w-ith 
the  order  of  the  coui-t  to  deliver  the  property  and  pay  the  money  owing  into  court, 
or  give  the  undertaking  required  in  tlie  preceding  section,  the  plaintiff  may  proceed 
against  him  in  an  action,  by  filing  a  petition  in  his  own  name,  as  in  other  cases, 
and  causing  a  summons  to  be  issued  upon  it,  and  thereupon  such  proceeflings  may 
be  had  as  in  other  actions,  and  judgment  may  be  rendered  in  favor  of  the  plaintiff 
for  the  amount  of  the  property  and  credits  of  every  kind  of  the  defendant  in  the 
possession  of  the  garnishee,  and  for  what  shall  appear  to  be  owing  by  him  to  the 


726  WYOMING. 

defendant,  and  for  the  costs  of  tlie  proceedings  against  the  garnishee.  If  the 
plaintiff  proceed  against  the  garnishee  by  action,  for  the  cause  that  his  disclosure 
■was  unsatisfactory,  unless  it  appear  in  the  action  that  such  disclosiu'e  was  incom- 
plete, the  plaintiff  shall  pay  the  costs  of  such  action.  The  judgment  in  this  action 
may  be  enforced  as  judgments  in  other  cases.  When  the  claims  of  the  plaintiffs 
in  attachment  are  satisfied,  the  defendant  in  attachment  may,  on  motion,  be 
substituted  as  the  plaintiff  in  the  judgment. 

§  217. — Final  judgment  shall  not  be  rendered  against  the  garnishee  until  the 
action  against  the  defendant  in  attachment  has  been  determined;  and  if  in  such 
action  judgment  be  rendered  for  the  defendant  in  attachment,  the  garnishee  shall 
be  discharged  and  recover  costs.  If  the  plaintiff  shall  recover  against  the  defend- 
ant in  attachment,  and  the  garnishee  shall  deliver  up  all  the  property,  moneys  and 
credits  of  the  defendant  in  his  possession,  and  pay  all  the  moneys  from  him  due, 
as  the  court  may  order,  the  garnishee  shall  be  discharged,  and  the  costs  of  the 
proceedings  against  him  shall  be  paid  out  of  the  proxDcrty  and  moneys  so  surren- 
dered, as  the  court  may  think  right  and  proper. 

§  218. — If  judgment  be  rendered  in  the  action  for  the  defendant,  the  attachment 
shall  be  discharged,  and  the  property  attached,  or  its  proceeds,  shall  be  returned 
to  him. 

§  219. — If  judgment  be  rendered  for  the  plaintiff,  it  shall  be  satisfied  as  follows: 
So  much  of  the  joroperty  remaining  in  the  hands  of  the  of&cer,  after  applying  the 
moneys  arising  from  the  sale  of  perishable  propertj^,  and  so  much  of  the  personal 
jjroperty  and  lands  and  tenements,  if  any,  whether  held  by  legal  or  equitable  title, 
as  may  be  necessary  to  satisfy  the  judgment,  shall  be  sold  by  order  of  the  court, 
under  the  same  restrictions  and  regulations  as  if  the  same  had  been  levied  on  by 
execution;  and  the  money  arising  therefrom,  with  the  amount  which  may  be  recov- 
ered from  the  garnishee,  shall  be  applied  to  satisfy  the  judgment  and  costs.  If 
there  Ije  not  enough  to  satisfy  the  same,  the  judgment  shall  stand,  and  execution 
may  issue  thereon,  for  the  residue,  in  all  respects  as  in  other  cases.  Any  suri^lus 
of  the  attached  jDroperty,  or  its  proceeds,  shall  be  returned  to  the  defendant. 

§  221. — The  court  may  compel  the  delivery  to  the  sheriff,  for  sale,  of  any  of  the 
attached  property  for  which  an  undertaking  may  have  been  given,  and  may  pro- 
ceed summarily  on  such  undertaking  to  enforce  the  delivery  of  the  property,  or 
the  j)aj'ment  of  such  sum  as  may  be  due  ux)on  the  imdertaking,  by  rules  and 
attachments  as  in  cases  of  contempt. 

§  222. — The  court  may  order  the  sheriff  to  repossess  himself,  for  the  purpose  of 
selling  it,  of  any  of  the  attached  property,  which  may  have  jjassed  out  of  his  hands 
withoixt  being  sold,  or  converted  into  monej';  and  the  sheriff  shall,  under  siich 
order,  have  the  same  i^ower  to  take  the  property  as  he  would  have  under  an  order 
of  attachment. 

§  223. — If  personal  property  which  has  been  attached,  be  claimed  by  any  person 
other  than  the  defendant,  it  shall  be  tlie  duty  of  the  officer  to  have  the  validity  of 
the  claim  tried,  and  such  proceedings  must  be  had  thereon,  with  the  like  effect,  as 
in  case  the  property  had  been  seized  iJiJon  execution,  and  claimed  by  a  third  person. 

§  224. — Where  several  attachments  are  executed  on  the  same  jiroperty,  or  the 
same  persons  are  made  garnishees,  the  court,  on  the  motion  of  any  of  the  plaintiffs, 
may  order  a  reference  to  ascertain  and  report  the  amounts  and  priorities  of  the 
several  attachments. 

§  225. — From  the  time  of  issuing  the  order  of  attachment,  the  court  shall  be 
deemed  to  have  acquired  jmisdiction  and  to  have  control  of  all  subsequent  jiro- 
ceedings  under  this  title;  and  if,  after  the  issuing  of  the  order,  the  defendant,  being 
a  person,  should  die,  or  a  corporation,  and  its  charter  should  expire  by  limitation, 
forfeiture  or  otherwise,  the  i^roceedings  shall  he  carried  on;  but  in  all  such  cases 
other  than  where  the  defendant  was  a  foreign  corporation,  his  legal  representatives 
shall  be  made  parties  to  the  action. 

§  226. — The  defendant  may,  at  any  time  before  judgment,  after  reasonable 
notice  to  the  x^laintiff,  move  the  com-t  for  additional  security  on  the  part  of  the 
plaintiff;  and  if,  on  such  motion,  the  court  is  satisfied  that  the  surety  in  the  plaint- 
iff's undertaking  has  removed  from  this  territory,  or  is  not  sufficient  for  the  amount 
thereof,  it  may  vacate  the  order  of  attachment,  and  direct  restitution  of  any  prop- 
erty taken  under  it,  imless  in  a  reasonable  time  to  be  fixed  by  the  court,  sufficient 
security  is  given  by  the  plaintiff. 

§  227. — The  defendant  may,  at  any  time  before  judgonent,  upon  reasonable 
notice  to  the  plaintiff,  move  to  dischai-ge  an  attachment,  as  to  the  whole  or  any  of 


WYOMING.  727 

the  property  attached,  and  the  motion  may  be  heard  and  decided  by  the  court  at 
any  term  or  regular  session  thereof;  or  the  motion  may  be  heard  and  decided  by 
any  judge  tliereof,  in  vacation. 

§  228.— If  the  motion  be  made  upon  affidavits  on  the  part  of  the  defendant,  or 
papers  and  eWdence  in  the  case,  but  not  otherwise,  the  plaintiff  may  oppose  the 
same  by  affidavits  or  other  evidence,  in  addition  to  that  on  which  the  order  of 
attachment  was  made. 

ATTACHMENTS  IN  CERTAIN  ACTIONS. 

§  229. — First.  Where  a  debtor  has  sold,  conveyed,  or  otherwise  disposed  of  hia 
property  with  the  fraudulent  intent  to  cheat  or  defraud  his  creditors,  or  to  hinder 
or  delay  them  in  the  collection  of  their  debts. 

Second.  Where  he  is  about  to  make  such  sale,  conveyance,  or  disposition  of  hia 
property  with  such  fraudulent  intent. 

Third.  _  When  he  is  about  to  remove  his  property,  or  a  material  part  thereof, 
with  the  intent  (or  to  the  effect)  of  cheating  or  defrauding  his  creditors,  or  of  hin- 
dering and  delaying  them  in  the  collection  of  their  debts. 

Fourth.  Or  when  he  is  about  to  abscond  or  depart  from  Wyoming  Territory, 
with  the  intent  to  defraud  his  creditors.     [Stats.  1884,  p.  32.] 

§  230. — A  creditor  may  bring  an  action  on  a  claim  before  it  is  due,  and  have  an 
attachment  against  the  property  of  the  debtor  in  the  above-mentioned  cases. 

§  231. — The  attachment  authorized  by  the  last  section  may  be  granted  by  the 
court  in  which  the  action  is  brought,  or  by  a  judge  thereof;  but  before  such  action 
shall  be  brought,  or  such  attachment  shall  be  gTanted,  the  plaintiff,  his  agent  or 
attorney,  shall  make  an  oath,  in  writing,  showing  the  nature  and  amount  of  the 
plaintiff's  claim,  that  it  is  just,  when  the  same  shall  become  due,  and  the  existence 
of  some  one  of  the  grounds  for  attachment  enumerated  in  the  preceding  section. 

§  232. — If  the  court  or  judge  refuse  to  grant  an  order  of  attachment,  the  action 
shall  be  dismissed,  but  without  prejudice  to  a  future  action;  and  in  all  such  actions 
application  for  an  attachment  must  be  made. 

§  233. — The  order  of  the  court  or  judge  granting  the  attachment  shall  specify 
the  amount  for  which  it  is  allowed,  not  exceeding  a  sufficient  sum  to  satisfy  the 
plaintiff's  claim  and  the  probable  cost  of  the  action. 

§  234. — The  order  of  attachment  as  granted  by  the  court  or  judge,  shall  not  be 
issued  by  the  clerk  until  there  has  been  executed  in  his  office,  such  undertaking  on 
the  part  of  the  plaintiff  as  is  directed  by  section  one  hundred  and  ninety. 

§  235. — The  plaintiff  in  such  action  shall  not  have  judgment  on  his  claim  before 
it  becomes  due,  and  the  proceedings  on  attachment  may  be  conducted  without  delay. 

§  236. — The  proceedings  in  the  first  article  of  this  title,  subsequent  to  section 
one  hundred  and  ninety,  shall,  so  far  as  they  are  applicable,  regulate  the  attach- 
ments authorized  by  this  article. 


Justices  of  the  peace— Chap.  71,  sees.  125-157,  and  Stats.  1884,  p.  79, 
Exemptions — Chap.  48,  sees.  1,  2. 


V 


TABLE  OF  CASES. 


i 


TABLE  OF  CASES. 


Abbott  V.  Stinchfield,  71  Me.  213,  sec. 

428. 
Abell  V.  Simon,  49  Md.  318,  sees.  399, 

522,  527. 
Abernatby  v.  Wbitebead,   69  Mo.    28, 

sec.  331. 
Abiiigton  V.  Duxbury,  105  Mass.  287, 

sec.  395. 
Adams  V.  Avery,  2  Pittsb.  77,  sees.  428, 
453,  460,  500. 
V.  Barrett,  2  N.  H.  374,  sees.  421, 

426,  447. 
V.  CorcUs,  8  Pick.  260,  sec.  531. 
V.  FUer,  7  Wis.  306,  sec.  503. 
V.  Lane,  38  Vt.  640,  sees.  404, 

421. 
V.  Newell,  8  Vt.  190,  sees.  401, 

409. 
v.  Kobinson,  1  Pick.    461,  sees. 
371,  402,  437,  465,  4G9,  482. 
V.  Scott,  104  Mass.  164,  sec.  444. 
V.  Tyler,  121  Mass.  380,  sees.  419, 
422. 
Adl\im  V.  Yard,  1  Rawle,  163;  18  Am. 

Dec.  G08,  sees.  380,  381,  396. 
Albany  City  Ins.  Co.  v.  Whitney,  70 

Pa.  St.  248,  sees.  331,  403,  410,  414. 

Aldrich  v.  Brooks,  25  N".  H.  241,  sees. 

452,  473. 

V.  Woodcock,  10  N.  H.  99,  sees. 

330,  338,  414. 

Alleghany  Sav.  Bank  v.  Meyer,  59  Pa. 

St.  361,  sec.  581. 
Allen  V.  Erie  City  Bank,  57  Pa.  St.  129, 
sec.  407. 
V.  Hall,  5  Met.  263,  sees.  442, 479, 

513,  518,  529. 
V.  Meggnire,  15  Mass.  490,  sec.  442. 
V.  Ptussell,  78  Ky.  105,  sec.  422. 
V.  Watt,  79  111.  284,  sec.  503. 
Alley  V.  Moore,  2  Tenn.  Ch.  206,  sec.  524. 
Alston  V.  Clay,  2  Hayw.   (N.   C.)  171, 
sees.  330,  347. 
V.  NeweU,  8  Vt.  190,  sec.  420. 
American  Bank  v.  Kollins,  99  Mass.  313, 
sec.  494. 
V.  Snow,  9  E,.  I.  11,  sec. 
498. 
Ames  V.  Kansas,  111  U.  S.  449,  sec.  418. 
Amoskeag  Manuf.  Co.  v.  Gibbs,  28  N.  H. 

316,  §  360. 
Amsbry  v.  Hinds,  48  K  Y.  57,  sec.  395. 


Anderson  v.  De  Loer,  6  Gratt.  364,  sec. 

482. 
V.  Van  Allen,  12  Johns.  343, 

sees.  469,  471. 
V.  Young,  21  Pa.  St.  443,  sec. 

503. 
V.  Wanzer,   5  How.    (Miss.) 
587;  37  Am.  Dec.  170,  sees. 
353,  359,  486,  487. 
Andrews  v.  Herring,  5  Mass.  210,  sec. 
380. 
V.  Ludlow,  5  Pick.  28,  sees.  407, 
411,  440. 
Anthony  v.  Wood,  Ch.  Leg.   N.  Oct.  4 

1884,  sec.  329. 
Antoni  v.  Greenhow,  107  U.  S.  769,  sec. 

418. 
Arents  v.  Commonwealth,  18  Gratt.  750, 

sec.  467. 
Arledge  v.  White,  IHead.  241,  sees.  375, 

457,  513. 
Armor  v.  Cockburn,  4  Mart.  N.  S.  667, 

sec.  444. 
Arnold  v.  Elwell,  13  Me.  264,  sec.  412. 
V.  Gul'att,  68  Ga.  810,  sees.  504, 
521. 
Arrington  v.  Screws,  9  Ired.  42;  49  Am. 

Dec.  408,  sees.  327. 
Arthur  v.  Batte,  42  Tex.  159,  sees.  326, 

334,  338,  494. 
Ashby  V.  Watson,  9  Mo.  235,  sees.  364, 

513. 
Ashurst  V.  Given,  5  W.  &  S.  323,  sec.  428. 
Atcheson  v.  Smith,  3  B.  Mon.  502,  sec. 

505. 
Atkins  V.  Prescott,  10  N.  H.  120,  sees. 

359,  486,  487,  490. 
Atlantic  etc.  Ins.  Co.  v.  Wilson,  5  E.  L 

479,  sec.  522,  527. 
Averill  v.  Tucker,  2  Craneh  C.  C.  544, 

sec.  422. 
Ayer  v.  Hutchins,  4  Mass.  370;  3  Am. 
Dec.  232,  sec.  463. 


B. 


Backhouse  v.  Harrison,  5  Bam.  &  Adol. 

1098,  sec.  463. 
Badger  v.  Towle,  48  Me.  20,  see.  399. 
Badlam  v.  Tucker,  1  Pick.  389;  11  Am. 

Dec.  201,  sees.  330,  414,  440. 
Bailey  v.  Lacy,  27  La.  An.  39.  sees.  330, 
35L 


(731) 


732 


TABLE   OF   CASES. 


Bailey  v.  Eoss,  20  N.  H.  302,  sees.  325, 

338,  442. 
Baker  v.  Lancashire  Ins.  Co.  52  Wis.  193, 
sec.  528. 
V.  ]Moody,  1  Ala.  315,  sees.  438, 
4G5. 
Balderstone  v.  Monro,  2  Cranch  C.  C. 

623,  sees.  437,  4G8. 
Baldwin  v.  Morrell,  8  Humpli.  74,  sec. 

532. 
Ball  V.  Citizens  etc.  Bank,  39  Ind.  364, 
sec.  519. 
V.  Gilbert,  12  Met.  397,  sees.  445, 
453,  528. 
BaUiet  -y.  Bro%vn,  103  Pa.  St.  546,  sees. 
410,  437,  450. 
V.  Scott,  32  Wis.  174,  sees.  469, 
473,  474. 
Ballio  V.  Poisset,  8  Mart.  K  S.  336;  19 

Am.  Dec.  185,  sec.  486. 
Ballston  Spa  Bank  v.  Marine  Bank,  18 

Wis.  490,  sees.  330,  348,  429. 
Baltimore  etc.  R.  Co.  v.   Gallahue,  14 
Gratt.  563;   12  Gratt.  655, 
sees.  342,  412,  449,  483. 
Same  v.  Glenn,  28  Md.  287,  sec.  343. 
V.  May,  25  Ohio  St.  347,  sees.  500, 

503. 
V.  McCuUoTigh,  12  Gratt.  595, 

sees.  449,  451. 
V.  Wheeler,  18  Md.  372,  sec.  444. 
Bank  V.  Judson,  4  Seld.  254,  sec.  402. 

V.  Levy,  1  McMullen,  431,  sees. 

442,  473,  516. 
V.  McCall,  3  Binn.  338,  sec.  432. 
V.  Payne,  21  La.  An.  380,  sec.  336. 
of  America  v.    McNeil,  10  Bush 
54,  sec.  408. 
Augusta  V.  Earle,  13  Pet.  519, 

sec.  342. 
Chester  v.  Ralston,  7  Pa.  St. 

822,  sec.  426. 
Commerce  v.  Bogy,  44  Mo.  18, 

sees.  465,  482. 
Noitliern  Liberties  v.   Jones, 
42  Pa.  St.  536,  sees.  411,  428. 
Pittsburg  V.  Neal,  22  How.  96, 

sec.  463. 
State  of  Mo.  v.  Bredow,  31  Mo. 

523,  sec.  329. 
St.  Mary  v.  Morton,  12  Rob. 

(La.)  409,  sees.  472,  48L 
Tenn.  v.  Dibrell,  3  Sneed,  378, 
sees.  346,  418. 
Banning  v.  Sibley,  3  Minn.  389,  sec.  523. 
Barker  v.  Esty,  19  Vt.  131,  sec.  447. 
Barker  v.  Osborne,  71  Me.  69,  sees.  377, 

440,  513,  523. 
Barker  v.  Tabor,  4  Mass.  81,  sec.  365. 

V.  Valentine,  10  Gray  341,  sec. 
467. 
Barnard  v.  Graves,  16  Pick.  41,  sees.  422, 

510. 
Barnes  v.  Treat,  7  Mass.  271,  sec.  425. 
V.  Wayland,  14  La.  Ad.  791,  sees. 

367,381. 
V.  Webster,  16  Mo.  258;  57  Am. 
Dec.  232,  sec.  356. 
Bamett  v.  Weaver,  2  Whart.  418,  sees. 

404,  425. 
Barney  v.  Douglass,  19  Vt.  98,  sec.  460. 


Barr  v.  King,  96  Pa.  St.  485,  sec.  456. 

V.  Perry,  3  Gill  313,  sec.  405. 

Barrow  v.  West,  23  Pick.  270,  sec.  503. 

Barry  v.  Fisher,  39  How.  Pr.  521,  sec 

490. 

V.  Hogan,  110  Mass.  209,  sec.  527. 

Bartell  v.  Bauman,  12  111.  App.  450,  sees. 

419,  426. 
Bartlett  v.  Benson,  14  Mees  &  W.  733, 
sec.  467. 
V.  Pearson,  29  Me.  9,  sec.  471. 
V.  Wilbur,  53  Md.  485,  sees.  393, 

396. 
V.  Wood,  32  Vt.  372,  sees.  452, 
473. 
Barton  v.  Albright,  29  Ind.   489,  sees. 
503,  508,  525. 
V.  Smith,  7  Iowa  85,  sec.  503. 
Bass  V.  Goodsall,  1  Yoimge  &  C.  617, 

see.  428. 
Bassett  v.  Garthwaite,  22  Tex.  230,  sec. 

458. 
Bates  V.  Chicago  etc.  R.  Co.,  Wis.  Leg. 
K,  May  15,  1884,  sees.  359, 
3G0. 
V.  Forsyth,  64  Ga.  231,  sec.  392. 
V.  New  Orleans  etc.  R.  Co.,  4  Abb. 
Pr.  72,  sees.  328,  449. 
Battles  V.  Simmons,  21  La.  An.  416,  sees. 

393,  414. 
Baxley  v.  Linah,  4  Harris,  241,  sec.  402. 
Baxter  v.  Currier,  13  Vt.  615,  sec.  328. 
V.  Little,  6  Met.  7;  39  Am.  Dec. 

707,  see.  466. 
V.  M.  K.  &  T.  R.   Co.,  67  Barb. 

383,  sees.  380,  390,  393. 
V.  Vincent,  6  Vt.  014,  sees.  344, 
413,  503,  508,  528. 
Baylies  V.  Houghton,  15  Vt.  626,  see.  464 
Beach  v.  VUes,  2  Peters  675,  sec.  513. 
Bean  v.  Barney,  10  Iowa  498,  sec.  521. 
V.  Bean,  38  N.  H.  279,  sec.  413. 
V.  Simpson,  16  Me.  49,  sees.  469, 471. 
Beazier  v.  Chappel,  2  Brev.  107,  sec.  465. 
Becker  v.  Dunham,  27  Minn.  32,  sec.  410. 
Beckwith  v.  Baxter,  3  N.  H.  67,  sees. 

416,  425. 
Beers  v.  Arkansaw,  20  How.  527,  sec. 

418. 
Belcher  v.  Grubb,  4  Harr.  461,  sec.  497. 
Belknap  v.  Gibbons,  13  Met.  471,  sees. 

341,  457. 
BeU  V.  Jones,  17  N.  H.  307,  sees.  369, 
394  473. 
V.  Kendi-icli,  8  N.  H.  520,  sec.  370. 
Benson  v.  Halloway,  59  JNliss.  358,  sec 

505. 
Bently  v.  Shrieve,  4  Md.  Ch.  Dec.  412, 

sec.  423. 
Benton  v.  Burgott,  10  Serg.  &  R.  240,  sec. 
402. 
V.  LindeU,  10  Mo.  557,  sec.  520. 
Bumard  v.  Moore,  8  Allen  273,  sec.  440. 
Berry «;.  Anderson,  2  How.  (Miss.)  049, 
sees.  399,  405. 
V.  Harris,  22  Md.  30,  sec.  490. 
Bibb  V.  Preston,  1  Iowa  460,  sec.  523. 
V.  Smith,  1  Dana  580,  sees.  439, 
479. 
Bickford  v.  Rice,  105  INIass.  340,  sec  53L 
Bickle  V.  Chrisman,  76  Va.  678,  sec.  426. 


TABLE    OF   CASES. 


733 


I 


Bi^elow  V.   Andress,  31  111.    322,  sees. 

325,  333. 
Bi£:a:s  V.  Kouns,  7  Dana  405,   sees.  338, 

354. 
Bills  V.  Nat'l  Park  B'k  47  N.  Y.  Supr. 

Ct.  302,  sees.  410,  448,  449,  460,  4G2. 
Bingham  v.   Lamping,  26  Pa.    St.    340, 
sees.  410,  412. 
V.  Pushing,  5  Ala.   403,  sec. 

484. 
V.  Smith,  5  Ala.  651,  sees.  492, 
494. 
Bishop  V.  Holcombe,  10  Conn.  444,  sees. 
471,  472. 
V.  Young,  17  Wis.  46,  sees.  328, 
449. 
Bissell  V.  Briggs,   9  Mass.   462;  6  Am. 
L)ee.  88,  sec.  402. 
V.  Strong,  9  Pick.  5C2,  sec.  329. 
Bitton  V.  Preston,  9  Vt.  257,  see.  4G0. 
Bivens  v.  Harper,  59  111.  21,  sees.  404, 

422. 
Black  V.   Paul,  10  Mo.  103,  sees.  465, 

469. 
Blackburn  v.  Davidson,  7  B.  Mon.  101, 

sees.  452,  473. 
Blackwood  v.  Jones,  27  Wis.  498,  sec. 

399. 
Blair  v.  Cantey,  2Speer34;  42  Am.  Dec. 
3G0,  sees.  330,  347,  421. 
V.  Ehodes,  5  Ala.  048,  sees.  452, 
473. 
Blaisdell  v.  Ladd,  14  N.  H.  129,  sees.  338, 

457. 
Blake  v.  Williams,  6  Pick.  286;  17  Am. 

Dee.  372,  sees.  438,  474. 
Blanehard  v.  Cole,  8  La.  160,  sees.  514, 
519. 
V.  Vargas,    18  La.    486,  sec. 
375. 
Blin  V.  Pierce,  20  Vt.  25,  sec.  482. 
Bliss  V.  Smith,  78  111.  359,  sees.  329,  333. 
Blodgett  V.   Gardiner,  45  Me.  542,  sec. 

531. 

Blumerv.  Gilbert,  124Mass.  215,  sec.  526. 

Boardman  v.  Gushing,   12  N.   H.   105, 

sees.  411,  518. 

V.  Roe,  13  Mass.  104,  sec.  447. 

Bolton  V.  Penn.  Co.,  88  Pa.  St.  201,  sec. 

329,  39o. 
Boone  Co.  v.  Keck,  31  Ark.  387,  sees. 

419,  422. 
Borden  v.  Fitch,  15  Johns.  121;  8  Am. 

Dec.  225,  sec.  402. 
Born  V.  Staaden,  24  111.  320,  sees.  435, 

472,  504. 
Boston  etc.  R.  Co.  v.  Oliver,  32  N.  H. 
172,  sec.  518. 
Type  Co.  v.  Mortimer,  7  Pick. 
166;  19  Am.   Dec.  266,   sees. 
516,  518. 
Eost-wick  V.  Beaeh,  18  Ala.  80,  sec.  389. 
Bottom  V.  Clark,  7  Gush.  487,  sec.  333. 
Bouner  v.  JNIartin,  37  Ala.  83,  sec.  521. 
Bowden  v.  Schatzell,  Bailey's  Eq.  360, 

see.  420. 
Bowker  v.  Hill,  60  Me.  172,  see.  407. 
Bowler  v.  European  etc.  Co.,  67  Me.  395, 

sees.  330,  404,  416,  429. 
Boyd  V.  Bayless,  4  Humph.  386,  sees. 
341,  457. 


Boyd  V.  Chesapeake  etc.  Co. ,  17  Md.  195, 

sees.  342,  360. 
Boyle  V.  Franklin F.  Ins.  Co.,  7  Watts  & 

S.  76,  see.  453. 
Brackett  v.  Blake,  7  Met.  .335,  sec.  465. 
Bradford  v.  Mills,  5  R.  I.  393,  see.  41.3. 
Bradley  v.  Richmond,  6  Vt.  121,  sec.  419, 

V.  Root,  5  Paige,  641,  sec.  482. 
Brainard  v.  Eevis,  2  Mo.  App.  490,  sec. 
467. 
V.  Shannon,  CO  INIe.  342,  sees. 
373,  377,  389,  395,  .523. 
Branch  Bank  v.  Poe,  1  Ala.  396,  sees. 

3'^7   338 
Brannon  v.  Noble,  8  Ga.  549,  sec.  502. 
Brashear  v.  Root,  8  Md.  95,  sec.  422. 

V.  West,  7  Peters  608,  sec.  329. 
Brauser  v.  New  Eng.  F.   Ins.   Co.,  21 

•Wis.  506,  sees.  342,  343. 
Bray  v.  WaUingford,  20  Conn.  416,  sec. 

419. 
Brazier  v.  Chappell,  2  Brev.  107,  sec.  437. 
Breading  v.  Liegworth,  29  Pa.  St.  396, 

sees.  508,  525,  528. 
Brealsford  v.  Mead,  1  Yeates  488,  sees. 

353,  480,  487. 
Brecht  v.  Corby,  7  Mo.  App.  300,  sec. 

505. 
Brickey  v.  Davis,  9  lU.  App.  362,  sec. 

494. 
Brigden  v.  Gill,  16  Mass.  522,  sees.  374, 

416,  447. 
Brings  V.  Block,  18  Mo.  281,  sees.  411, 

438. 
Brill  V.  Tuttle,  81  N.  Y.  457;  37  Am. 

Rep.  515,  sees.  465,  482. 
Briscoe  v.  Bank,  11  Peters  259,  sec.  418. 
Britt  V.  Bradshaw,  18  Ark.  530,  sees.  381, 

396. 
Brittain  v.  Anderson,  8  Baxt.   316,  sec. 

458. 
Britton  v.  Bishop,  11  Vt.  70,  sec.  466. 
Brook  V.  Smith,  1  Salk.  280,  see.  50a 
Brooks  V.  Cook,  8  Mass.  246,  sees.  404, 
425,  426. 
V.  Hatch,  6  Leigh  534,  sec.  482. 
V.  Hilrlreth,22Iowa  469,  sec.  437, 
475. 
Brown  v.  Brown,  55  N.  H.  74,  sec.  513. 
V.  Davis,  18  Vt.  211,  see.  415. 
V.  Dudley,   33  N.  H.  511,  sees. 

503,  508,  525. 
V.  Foster,  4  Cush.  214,  sees.  438, 

476. 
V.  Heath,  45  N.  H.  168,  sees.  345, 

419. 
V.  Hull,  33  Gratt.  28,  sec.  466. 
V.  SUsby,  10  N.  H.  521,  sees.  528, 

529,  531. 
V.  Somerville,  8  Md.  444,  sees. 

500,  502,  505. 
V.  Warren,  43  N.  H.  430,  sees. 

513,  514. 
V.  Williamson,  30  Pa.  St.  338,  sec. 
428. 
Bruce  v.  Cook,  6  GiU  &  J.  345,  sees.  399, 
405. 
V.  Smith,  44  Ind.  1,  sec.  408. 
Brunswick  Bank  v.  Sewall,  34  Me.  202, 

sec.  412. 
,  Brush  V.  Scribner,  11  Conn.  388,  sec.  4G3. 


734 


TABLE    OF   CASES. 


Bryan  v.  Dean,  63  Ga.  317,  sees.  399,  521. 
V.  Lashley,  13  Smedes  &  M.  284, 
sec.  3"tJ3. 
Buchanan  v.  Alexander,  4  How.  20,  sec. 

422. 
Buckley  v.  Garratt,  47  Pa.  St.  204,  sec. 

472. 
Buckner  v.  Jones,  1  Mo.  App.  538,  sec. 

463. 
Buddig  V.  Simpson,  33  La.  An.  375,  sec. 

4ie. 

Buflfam  V.  City  of  Racine,  26  Wis.  449, 

sec.  419. 
Buford  V.  Welborn,  6  Ala.  818,  sees.  383, 

387. 
Bulfinch  V.  Winchenback,  3  Allen  161, 

sees.  486,  490. 
Bulkley  V.  Eckert,  3  Pa.  St.  368;  45  Am. 

Dec.  650,  sec.  422. 
BuUard  v.  Hicks,  17  Vt.  193,  sec.  530. 
Bunker  v.  Gilmore,  40  Me.  88,  sees.  471, 

481,  504. 
Burke  v.  Whiteomb,  13  Vt.  421,  sec.  449. 
Burleson  v.  Millan,  56  Miss.  399,  sees. 

347,  421. 
Burlingame  v.  Bell,  16  Mass.  318,  sees. 

325,  338,  441. 
Burlock  V.  Taylor,  16  Pick.  335,  sec.  480. 
Burnap  v.  Campbell,  6  Gray,  241,  sec. 

507. 

Burnell  v.  Weld,  59  Me.  423,  sec.  490. 

Bumham  v.  Beat,  14  Allen  217,  sec.  414. 

Bumham  v.  City  of  Fond  Du  Lac,  15 

Wis.  193,  sec.  419. 

V.  Doolittle,  14  Neb.  214,  sees. 

410,  440,  441. 
V.  Dunn,  35  N.  H.  556,  sees. 

381,  390. 
V.  Polsom,  5  N.  H.  566,  sec. 

492. 
V.  Hopkinson,  17  N.  H.  259, 
sees.  328,  335,  351,  490. 
Bumside  v.  McKinley,  12  La.  An.  505, 

sees.  437,  444. 
BurreU  v.  Letson,  1  Strob.  2.39;  2  Speers 

378,  sees.  330,  347,  372,  421,  498. 
Burrows  v.  Glover,  106  Mass.  324,  sec. 

465. 
Burrus  V.  Moore,  63  Ga.  405,  sees.  365, 

383,  387. 

Burt  V.  Parish,  9  Ala.  211,  sees.  361, 363. 

Burton  v.  Dist.  Township,  11  Iowa  166, 

sees.  526,  527. 

V.  Wynne,  55  Ga.  615,  sec.  460. 

Bush  V.  Foote,  58  Miss.  5;  38  Am.  Eep. 

310,  sec.  482. 
Bushnell  v.  Allen,  48  Wis.  460,  sees.  396, 

399. 
Butman  v.  Hobbs,  35  Me.  232,  sec.  377. 
Butterfield  v.  Hartshorn,  7  N.   H.  345; 

26  Am.  Dec.  741,  sec.  475. 
Byars  v.  Griffin,  31  Miss.  603,  sec.  482. 


C. 

Cadwalader  v.  Hartley,  17  Ind.  520,  sec. 

460. 
Cady  V.  Comey,  10  Met.  459,  sec.  425. 
Cahill  V.  Bigelow,  18  Pick.  369,  sees.  470, 

477,  516. 


Cahoon  v.  Ellis,  18  Vt.  500,  sec.  396. 

V.  Morgan,  38  Vt.  234,  sees.  336, 
301. 
Caignett  v.  Gillband,  2  Yeatea  35,  sec. 

489. 
Cairo  etc.  R.  Co.  v,  Killenberg,  82  111. 

295,  sees.  380,  465,  466. 
Calcord  v.  Daggett,  18  Mo.  557,  sec.  461. 
Caldwell  V.  Coates,  78  Pa.  St.  312,  sees. 
397,  448. 
V.  Stewart,  30  Iowa  379,  sees. 
345,  419. 
Callagan  v.  Pocasset  Manuf.   Co.,   119 

Mass.  173,  sec.  473. 
Callender  v.  Fiu-bish,  46  Me.  226,  sees. 

378,  411,  440. 
Camberford  v.  Hall,  3  MeCord  345,  sec. 

356. 
Camden  v.  Allen,  26  N.  J.  L.  398,  sec. 

513. 
Cameron  v.  Stollenwerck,   6  Ala.   704, 

sees.  503,  508. 
Cammuck  v.  Floyd,  10  La.  An.  351,  sec. 

437,  441. 
Camp  V.  Byrne,  41  Mo.  525,  sec.  342. 
V.  Clark,  14  Vt.  387,  sec.  479. 
Campbell  v.  Foster,  35  N.  Y.  361,  sec. 
428. 
V.  Nesbitt,  7  Neb.  300,  sec.  407. 
V.  Steele,  1  Jones,  394,   sec. 
402. 
Canaday  v.  Detrick,  63  Ind.  485,  sec.  466. 
Canal  Co.  v.  Ins.  Co.  2  Phila.  354,  sec.  437. 
Candee  v.  Skinner,  40  Conn.  4G0,  sec.  531. 
V.  Webster,  9  Ohio  St.  452,  sec. 
531. 
Cardany  v.  N.  E.  Furniture  Co.,  107 

Mass.  116,  sees.  377,  523. 
Carpenter  v.  Gay,  12  R.  I.  306,  sec.  327. 
Carr  v.  Waugh,  28  111.  418,  sec.  465. 
Carrique  v.  Sidebottom,  3  Met.  297,  sees. 

367,  383,  387. 
Carroll  v.  Finley,  26  Barb.  61,  sec.  364. 
V.  Parkes,  1  Baxt.  (Tenn.)  269, 

sec.  354. 
V.  Sheehan,  12  R.  I.  218,  sec.  356. 
Carson  v.  AUen,  2  Chand.  123;  2  Pinney 
457;  54  Am.  Dec.  148,  sec. 
458. 
V.  Carson,  6  Allen  397,  sec.  425. 
Case  Threshing  M.  Co.  v.   Merocle,   54 

Wis.  295,  sec.  404. 
Casey  v.  Davis,  100  Mass.  124,  sees.  371, 

422,  504. 
Center  v.  McQuestion,  18  Kan.  476,  sees. 

330,  349,  385,  429,  438. 
Central  Bank  v.  Prentice,  18  Pick.  396, 
sees.  411,  440. 
Plankroad  v.  Sammons,  27  Ala. 
380,  sees.  330,  338,  349,  429. 
Chambers i^.  Yamell,  37  Ala.  400,  sec.  524. 
Chapin  v.  Conn.  R.   Co.,  16  Gray  69, 
sees.  416,  428. 
V.  Jackson,  45  Ind.  153,  sec.  444. 
Chapman  v.  Williams,  13  Gray  416,  sec. 

329. 
Chase  v.  Alexander,   6  Mo.   App.   506, 
sec.  465. 
V.  Foster,  9  Iowa  429,  sec.  528. 
V.  Houghton,   16  Vt.   594,  sees. 
458,  460. 


TABLE    OF   CASKS. 


735 


Chase  v.  Manhardt,  1  Bland  333,  sec. 

531. 
Chatzelv.  Bolton,  3McCord33,  sec.  490. 
Cheairs  v.  Slatcn,  3  Humph.  101,  sec.  503. 
Chealey  v.  Brewer,  7  Mass.  239,  sec.  422. 
Cheatham  v.  Trotter,  Peck  (Tenn.)  198, 

sec.  372. 
Cheongwo  v.  Jones,  3  Wash.  C.  C.  359, 

sees.  500,  502. 
Cherry  v.  Hooper,  7  Jones  82,  sees.  452, 

473. 
Chesapeake  etc.  R.  R.  Co.  v.  Paine,  29 

Gratt.  502,  sees.  342,  354,  408,  435. 
Chesley  v.  Coombs,  58  N.  H.  142,  sees. 

412,  438. 

Chicago  etc.  K.  Co.  v.  Mason,  11  111.  App. 

525,  sec.  525. 

v.Eagland,84I11.375, 

sees.  329,395,401. 

Chilcote  V.  Conley,  36  Ohio  St.  545,  sees. 

373,  395,  401. 
Childress  v.  Dickens,  8  Yerg.  113,  sees. 

483,  484,  518. 
Childs  V.  Digby,  24  Pa.  St.  23,  sec.  411. 
Chisholme  v.  Ga.,  2  Dall.  419,  sec.  418. 
Christmas  v.  Russell,  14  Wall.  84,  sees. 

465,  482. 
Church  V.  Knox,  2  Conn.  514,  sec.  490. 
V.  Simpson,  25  Iowa  408,  sec.  523. 
Citizens  Bank  v.  Payne,  21  La.  An.  380, 

sees.  325,  326,  336. 
City  of  Chicago  v.  Hasley,  25  111.  595, 
sec.  419. 
Elizabeth  v.  Hill,  39  N.  J.  L. 

555,  sec.  395. 
Memphis  v.  Laski,  9  Heisk.  511; 
24  Am.  Rep.  321,  sees.  419, 
454. 
Newark  v.  Punk,  15  Ohio  St. 
462,  sec.  410. 
Claflin  V.  Iowa  City,  12  Iowa284,  sees.  345, 
357,  3(30. 
V.  KimbaU,  52  Vt.  6,  sec.  437. 
Clapp-'y.  Hancock  Bank,  1  Allen,  394, 
sees.  341,  484,  518. 
V.  Rogers,  38  N.  H.  435,  sec.  338. 
V.  Walker,  25  Iowa  315,  sec.  419. 
Clark  V.  Boggs,  6  Ala.  809;  41  Am.  Dec. 
85,  sec.  422. 
V.  Brewer,  6  Gray  320,  sec.  444. 
V.  Brown,  14  Mass.  271,  sec.  327. 
V.  Chapman,  45  Ga.  486,  sees.  359, 

360. 
V.  CiUey,  36  Ala.  652,  sec.  438. 
•  r.  Clark,  62  Me.  255,   sees.  422, 
456. 
V.  Deadrick,  31  Md.  148,  sec.  467. 
r.  Farnum,  7  R.  I.  174,  sees.  335, 

490. 
V.  Foxworthy,  14  Neb.  241,  sec. 

523. 
V.  Gardner,  128  Mass.  358,   sec. 

526. 
V.  Gibson,  12  K  H.  386,  sec.  445. 
V.  Great  Barrington,  11  Pick.  259, 

sec.  422. 
V.  King,  2  Mass.  524,  sees.  452, 

466. 
V.  Meixsell,  29  Md.  221,  sec.  405. 
V.  Mobile  School  Comr's,  36  Ala. 
621,  sec.  419. 


Clark  V.  Powell,  17  La.  An.  117,  sec.  531. 

V.  Viles,  32  Me.  32,  sec.  407. 
Clement  v.  Clement,  19  N.  H.  460,  sec. 

449. 
Cleneay  v.  Jimction  R.  Co.  26  Ind.  375, 

sec.  460. 
Clerks  Sav.  Bank  v.   Thomas,   1    Mo. 

App.  367,  sec.  463. 
Cleveland  v.  Clap,  5  Mass.  201,   sees. 

375,  377,  513. 
Clinton  Nat'l  Bank  v.  Bright,  126  Mass. 

535,   sees.   380,  390. 
Clise  V.  Freeborn,  27  Iowa  280,  sec.  500. 
Clodfelter  v.  Cox,  1  Sneed  330;  60  Am. 

Dec.  157,  sees.  471,  498. 
Clo-aghv.  Buck,  6  Neb.  343,  sees.  458,  462. 
Clymer  v.  WiUis,  3  Cal.  363,  sec.  421. 
Coane  v.  Freese,  16  N.  J.  L.  305,   sec. 

330. 
Coates  V.  Roberts,  4  Rawle  100,  sees. 

503,  505. 
Cabb  V.  Bishop,  27  Vt.  624,  sec.  447. 
Coble  V.  Nonemaker,   78  Pa.    St.  501, 

sees.  457,  529. 
Coburn  v.  Currens,  1  Bush,  242,  sec.  502. 
V.  Hartford,  38  Conn.  290,  sec. 
483. 
Cochran  v.  Fitch,  1  Sandf.  Ch.  142,  sees. 
402,  479,  494,  500,  503,  510. 
V.  Smith,  1  Sandf.  Ch.  148,  sec. 
486. 
Cockey  v.  Leister,  12  Md.  124,  sees.  420, 

424. 
Coe  V.  Rocha,  22  La.  An.  590,  sec.  523. 
Coffman  v.  Ford,  56  Iowa  185,  sec.  392. 
Cohen  v.  P.  Ins.  Co.  11  Mo.  374,  sec.  531. 
Cohens  v.  Va.,  6  Wheat.  375,  sec.  418. 
Colby  V.  Coates,  6  Cush.  558,  sees.  404, 

423,  425. 
Cole  V.  Wooster,  2  Conn.  203,  sees.  330, 

421. 
Collins  V.  Brigham,  11  N.  H.  420,  sees. 
428,  443,  444. 
V.  Chase,  71  Me.  434,  sec.  401. 
Colt  V.  Ives,  31  Conn.  25,  sec.  437. 
Colvin  V.  Rich,  3  Port.  175,  sees.  471, 472. 
Commercial  Bank  v.  McLeod,  Rep.  Jime 
18,  1884,  sec.  421. 
V.  Neally,  39  Me.  402, 
sec.  455. 
Commissioners  v.  Fox,  Morris  (Iowa)  48, 
sec.  460. 
of  Los  Animas  Count v  v. 
Bond,  3  Colo.  411, 
sees.  345,  419. 
Commonwealth  v.  Phoenix  B'k,  11  Met. 

129,  sec.  342. 
Cornstalk  v.  Farnum,  2  Mass.  96,  sees. 
452,  471. 
V.  Paine,  18  La.  479,  sec.  376. 
Conant  v.  Bicknell,  1  Chip.  D.  50,  sees. 

330,  347,  421. 
Conley  v.  Chilcote,  25  Ohio  St.  320,  sec. 

510. 
Conn.  etc.  R.  Co.  v.  Kerr,  17  Barb.  581, 

sec.  408. 
Connelly  v.  Harrison,  16  La.  An.  41,  sec. 

438. 
Conner  v.  Allen,  3  Head  418,  sec.  380. 
Connoly  v.  Cheeseborougb,  21  Ala.  166, 
sec.  465. 


736 


TABLE    OF   CASES. 


Conover  v.  Euckman,  32  N.  J.  Eq.  685, 

sec.  345. 
Conway  v.  Annington,   11  E.   I.   116, 
sees.  404,  426. 
V.  Cutting,  51  X.  H.  407,  sees. 

465,  469,. 
V.  Ionia  Ct.  Judge,  46  Mich. 
28,  sec.  356. 
Cook  V.  Dillon,  9  Iowa  407,  sec.  428. 

V.  Field,  3  Ala.  53;  36  Am.  Dec. 

436,  sees.  502,  503. 
V.  Walthall,  20  Ala.  334,  sec.  447. 
Cooney  v.  Cooney,   65  Barb.   524,  sec. 

409. 
Copeland  v.  Weld,  8  Me.  411,  sec.  407. 
Corbyn  v.  Bollman,  4  Watts  &  S.  342, 

sees.  422,  522. 
Corey  v.  Powers,  18  Vt.  587,  sec.  341. 
Corser  v.  Craig,  1  Wash.  C.  C.  424,  sees. 

471,  482. 
Cotta  V.  Mishow,  62  Me.  124,  sec.  513. 

V.  O'Xeal,  58  N.  H.  572,  sec.  440. 
Cottrell  V.  Varnum,  5  Ala.  229;  39  Am. 

Dec.  323,  sees.  484,  518. 
County  of  Cass  v.  Gillett,  100  U.  S.  585, 
sees.  458,  463. 
Warren  v.  Marcy,  96  IT.  S. 
90,  sec.  458. 
Covert  V.  Nelson,  8  Blackf.  265,  sees. 

466,  502. 
Cowles  V.  Coe,  21  Conn.  220,  sees.  434, 

439. 
Coykendall  v.  Ladd,  21  K  W.  Eep.  733, 

sees.  440,  453. 
Crabb  v.  Jones,  2  Miles  130,  sees.  492, 

497. 
Crain  v.  Gould,  40  lU.  293,  sees.  375, 377, 

481,  517,  523. 
Crane  v.  Freese,  16  N.  J.  L.  305,  sees. 

.347, 404. 
Crawford  v.  Clute,  7  Ala.  157;  41  Am. 
Dec.  92,  sees.  500,  501. 
V.  Slade,  9  Ala.  887;  44  Am. 
Dec.  463,  sec.  501. 
Crayton  v.  Clark,  11  Ala.  787,  sees.  471, 

472. 
Crone  v.  Brann,  23  Minn.  239,  sees.  354, 

435. 
Cronin  v.  Foster,  13  E.  I.  196,  sees.  344, 

413,  456. 
Crook  V.  Jadis,  5  Bam.  &  Adol.  909,  sec. 

463. 
Crosby  v.  Hetherington,  4  Man.  &  C 

933,  sec.  402. 
Cross  V.  Haldeman,  15  Ark.  200,  sees. 

460,  472. 
Crossman  v.  Grossman,  21  Pick.  21,  sees. 

366,  367,  378,  379,  520. 
Crownover  v.  Bamberg,  2  HI.  App.  162, 

sec.  426. 
Crozier  v.  Shants,  43  Vt.  478,  sec.  465, 

472. 
Cruett  V.  Jenkins,  53  Md.  217,  sees.  458, 

400,  463. 
Culver  V.  Parish,  21  Conn.  408,  sec.  463. 
Cummings  v.  Feary,  44  Mich.  39,  sees. 
393,  395,  396. 
V.  Garvin,  65  Me.  301,  sees. 
425,  426. 
Cunningham  v.  Hogan,  136  Mass.  407, 
sec.  390, 


Curie  V.  St.  Louis  P.  T.  Co.  12  Mo.  578, 

sec.  465. 
Curling  V.  Hyde,  10  Mo.  374,  sees.  426, 

455. 
Curry  v.  Woodward,  50  Ala.   258,  sees. 

353,  357;  53  Ala.  371,  sec.  488. 
Curtis  V.  Alvord,  75  Conn.  569,  sees.  326, 
398. 
V.  Isorris,  8  Pick.  280,  sees.  442, 

444. 
V.  Eaymond,  29  Iowa  52,  sees.  411, 
440. 
Gushing  v.  Laird,  6  Benedict,  408,  sees. 

372,  381,  396. 
Gushman  v.  Haynes,  20  Pick.  132,  sees. 

438,  465. 
Custer  V.  White,  49  Mich.  262,  see.  493. 
Cutter  V.  Baker,  2  Day  498,  sec.  506. 

V.  Perkins,  47  Me.  557,  sec.  449. 

Cutters  V.  Baker,  2  La.  An.  572,  sec.  444. 

Cutts  V.  Perkins,  12  Mass.  209,  sec.  482. 

Cuxon  V.  Chadley,  3  Bam.  &  C.  591,  sec. 

475. 

D. 

Dailey  v.  Coleman,  122  Mass.  64,  sec.  525. 
Daily  v.  Jordon,  2  Gush.  390,  sec.  532. 
Daley  v.  Cunningham,  3  La.   An.  55, 

sees.  420,  497. 
Danf  orth  v.  Penny,  3  Met.  564,  sees.  343, 

359. 
Daniel  v.  Eawlings,  6  Humph.  403,  sec. 

400. 
Daniels  v.  Clark,  38  Iowa  556,  sees.  326, 
340,  354. 
V.  Meinhard,  53  Ga.  359,  sees. 

338,  357,  359,  360. 
V.  WiUard,  16  Pick.  36,  sec.  480. 
Danley  v.  State  Bank,  15  Ark.  16,  sec. 

422. 
Darling  v.  Osborne,  51  Vt.  130,  sec.  467. 
Darlington  v.  Eogers,  13  Phila.  102,  sees. 

343,  456. 
Davenport  v.  Swan,  9  Humph.  186,  sec. 
409. 
V.   Woodbridge,    8    Me.   17, 
sees.  468,  469,  471,  472. 
Davidson  v.  Clayland,  1  Harr.  &  J.  546', 
sec.  421. 
V.  Donnovan,  4  Granch  C.  C. 
578,  sec.  300. 
Davis  V.  Barr,  9  Serg.  &  E.  137,  sec.  471. 
V.  Davis,  2  Gush.  Ill,  sec.  426. 
V.  Drew,  6  N.   H.   399;  25  Am. 

Dec.  467,  sec.  427. 
V.  Fogg,  58  X.  H.  159,  sec.  435. 
V.  Ham,  3  Mass.  33,  see.  449. 
V.  Holeombe,  1  Ohio  275,  sec.  3.30. 
V.  Knapp,   8  Mo.  657,  sees.  364, 

381,  396,  397. 
V.  Marston,  5  Mass.  198^  sees.  416, 

428. 
V.  McFarland,  37  Gal.    638,  sec. 

351. 
V.  Miller,  14  Gratt.  1,  sec.  467. 
V.  Oakford,  11  La.  An.  379,  sees. 

383,  387. 
V.  Powlette,  3  Wis.  300,  sees.  458, 

459. 
V.  Wilson,  52  Iowa  187,  sees.  330, 
441, 


TABLE    OF    CASES. 


737 


Dawkins  v.  Ganlt,  5  Eich.  L.  151,  sees. 

381,  o'J6. 
Dawson  v.    Holeombe,  1   Ohio   275;  13 

Am.  Dec.  C18,  sees.  330,  347,  404,  421. 
Day  V.  Panpierre,  13  Ad.   &.  E.  (N.  S.) 
802,  sec.  363. 
V.  Zimmerman,  88  Pa.  St.  188,  sec. 
458;  G8  Pa.  St.  72,  sees.   4G0, 
463. 
Dayton  v.  Borst,  31  N.  Y.  435,  sec.  408. 
Deacon  v.  Oliver,  14  How.  610,  sec.  407. 
Deaver  v.  Keith,  5  Ired.  374,  sec.  447. 
DeBlanc  n  Webb,  5  La.  82,  sees.  374, 

383,  387. 
DebUeux  v.  Hotard,  31  La.  An.  194,  sec. 

426. 
Decoster  v.  Livermore,  4  Mass.  101,  sec. 

423. 
Deer  v.  Lubey,  1  McArthur  187,    sec. 

418. 
De  Graff  v.  Thompson,  24  Minn.  452, 

sees.  337,  415. 
Dehner  v.  Helmbaeher  etc.  Mills,  7  111. 

App.  47,  sees.  371,  402,  465,  481. 
Delacroix  v.  Hart,  24  La.  An.  141,  sees. 

332,  350,  428. 
De  Liquero  r.    INIunson,   11  Heisk.  15, 

sec.  371. 
Dennie  v.  Hart,  2  Pick.  204,  sec.  510. 
Dennis  v.  Twitchell,  10  Met.  180,  sec. 

482. 
Dennistoun  v.  N.  Y.  C.  &  S.  Co.  6  La. 

An.  762,  sees.  325,  331. 
Denny  v.  Hamilton,  16  Mass.   402,  sec. 

408. 
Desha  v.  Baker,  3  Ark.  509,  sees.  363, 505. 
Detroit  etc.  Co.  v.  Eeilly,  46  Mich.  459, 

sec.  447. 
Devine  v.  Harvie,  7  Mon.  439;  18  Am. 

Dec.  194,  sec.  418. 
DevoU  V.  BroA\TieIl,  5  Pick.  448,  sees.  370, 

396. 
Devries  v.  Buchanan,  10  Md.  210,  sees. 

364,  366,.  381,  396. 
Dew  V.  Bank  of  Ala.,  9  Ala.  323,  sec. 

399. 
Dewey  v.  Garvey,  130  Mass.  86,  sec.  418. 
Dewing  v.  Wentworth,  11  Cush.  499,  sec. 

423. 
Diamond  v.  Harris,  33  Tex.  634,  sec.  467. 
Dickey  V.  Fox,  24  Mo.  217,  sec.  461. 
Dickinson  v.  Parmer,  2  Pich.  Eq.  407, 
sec.  421. 
V.  Strong,  4  Pick.  57,  sec.  407. 
Dickson  v.  Morgan,  7  La.  An.  490,  sec. 

385. 
Diefendorf  r.  Oliver,  8  Kan.  365,  sec.  475, 
Dispatch  Line  v.  Bellamy  Manuf .  Co. , 

12  N.  H.  205;  37  Am.  Dec.  203,  sees. 

33S,  414,  447. 
Dix  V.  Cobb,  4  Mass.  508,  sees.  354,  402, 

465,  4-19,  471,  472,  481. 
Dixon   A  Hill,  5  Mich.   404,   sees.  390, 

434,  4b9. 
Dobbins  v.  Hyde,  37  Mo.  114,  sees.  432, 
437,  504. 
V.  Railroad  Co.,  37  Ga.  240,  sees. 
418,  422. 
Dodd  V.  Bratt,  1  Minn.  270,  sec.  471. 
Doggett  V.  St.  Louis  etc.  Co.,  19  Mo. 

201,  sec.  532. 

II  Attachment— 22. 


Dolby  r.  Mullins,  3  Humph.  437;  39  Am. 

Dec.  180,  sec.  421. 
Dole  r.  Boutwell,  1  Allen,  286,  sec.  503. 
Dolson  V.  Brown,  13  La.  An.  .551,  sec. 

437. 
Donnelly  v.  O'Connor,   22  Minn.    309, 

sees.  523,  52Gv 
Dore  V.  Dawson,  6  Ala.  712,  sees.  465, 

466. 
Downer  v.  Curtis,  25  Vt.  650,  sec.  450. 

V.  Topliff,  19  Vt.  399,  sec.  453.    . 
Doyle  V.  Gray,  110  Mass.  206,  sees.  473, 

513. 
Drane  v.  McGavock,  7  Humph.  132,  sees. 

380,  404,  420,  421. 
Dresser  r.  MeCord,  96  111.  389,  sees.  371, 

402,  465. 
DriscoU  V.  Hoyt,  11  Gray  404,  sees.  328, 

335,  377,  490. 
Dryden  v.  Adams,  29  Iowa  195,  sees.  444, 

516. 
Dubois  v'.  Dubois,  6  Cowen  494,  sees.  330, 

345,  347,  404,  421. 
Ducarse  v.  Keyser,  28  La.  419,  sec.  468. 
Dudley  v.  Palkner,  49  Ala.  148,  sees.  152, 

425. 
Duke  r.  P.  I.  Locomotive  Works,  11  R. 

I.  599,  sec.  385. 
Duncan  v.  Berlin,  60  K  Y.  151,  sec.  473. 
Duncan  v.  Ware,  5  Stew.  &  P.  119;  24 

Am.  Dec.  772,  sec.  505. 
Dunlap  V.  Patterson F.  Ins.  Co.,  74  X. Y. 

145;  30  Am.  Rep.  283;  12  Hun  627; 

sees.  330,  347,  420. 
Dunmill  v.  Bedford,  3  Yes.  149,  sec.  428. 
Dunnegan  v.  Byers,  17  Ark.  492,  sees. 

484,  518. 
Dunning  v.  Owen,  4  Mass.  162,  sec.  399. 
Dupuy  V.  Sheak,  57  Iowa  361,  sec.  456. 
Durant  v.  Iowa  Co.,  1  Woolw.  69,  sees. 

458,  463. 
Durham  v.  Payne,  20  La.  An.  195,  sec. 

460. 
D wight  V.  Bank  of  Mich.,  10  Met.  68, 

sec.  437. 
Dwinel  v.  Stone,  30  Me.  384,  sec.  450. 
Dyer  v.  McHenry,  13  Iowa  527,  sec.  516. 


E. 


Eagan  v.  Luby,  133  Mass.  543,  sec.  470. 
Ealer  v.  McAllister,  14  La.  An.  821,  sees. 

347,  420. 
Early  v.  Redwood  City,  57  Cal.  193,  sees. 

450,  483. 
East  Line  etc.  R.  Co.  v.  Terry,  50  Tex. 

129,  sec.  397. 
Eastman  v.  Newman,  59  N.  H.  581,  sec. 

400. 
Eddy  V.  Heath,  31  Mo.  141,  sec.  447. 

V.  O'Hara,  132  Mass.  56,  sec.  501. 
Edgerly  v.  Sanborn,  6  N.  H.  387,  sec. 

529. 
Edmondson  v.  DeKalb  Co.,  51  Ala.  103, 

sees.  354,  435. 
Edson  V.  Sprout,  33  Vt.  77,  sec.  499. 

V.  Trask,  22  Vt.  18,  sees.  414, 428. 
Edwards  r.  Beugnot,  7  Cal.  162,  sec.  408. 
V.  Delaplaine,  2  Harr.  322,  sec. 
518. 


738 


TABLE    OF    CASES. 


Edwards  v.  Thomas,  2  Mo.  App.   282, 

sec.  463. 
Egerton  v.  The  Third  Municipality,   1 

La.  An.  435,  sec.  419. 
Ehrich^  r.  DeMill,  75  N.  Y.  370,  sec.  482. 
Eichelberger  v.  Murdoch,  10  Md.  373, 

sees.  414,  438. 
Ellicott  V.  Smith,  2  Cranch  C.  C.  542, 

sees.  353,  359,  486,  487. 
EUiott  V.  Newby,  2  Hawks  (N.  C.)  21, 

sec.  426. 
ElHs  V.  Goodnow,  40  Vt.  237,  sees.  444, 

516. 
Ellison  V.  Tuttle,  26  Tex.  283,  sees.  407, 

499. 
Elmer  v.  Welch,  47  Conn.  56,  sec.  394. 
Emanuel  v.  Smith,  38  Ga.  602,  sec.  366. 
Embree  v.  Hanna,  5  Johns.  101,  sec.  500. 
Emeric  v.  Gilman,  10  Cal.  404,  sec.  422. 
Emerson  v.  Wallace,  20  N.  H.  567,  sees. 

338,  434. 
Emmerson  v.  Partridge,  27  Vt.  8,  sees. 

460,  464. 
Emery  v.  Davis,  17  Me.  252,  sees.  414, 
428. 
V.  Lawrence,  8  Gush.  151,  sec. 
470. 
Enos  V.  Tuttle,  3  Conn.  27,  sees.  461, 

478,  479. 
Epstein  V.   Salorgue,  6  Mo.  App.  352, 

sec.  309. 
Erie  v.  Knapp,  29  Pa.  St.  173,  sec.  419. 
Bankr.  Gibson,  1  Watts  143,  sec.  402. 
Ersldne  v.  Sangston,  7  Watts  150,  sees. 

381,  396. 

Erwin  V.  Commercial  Bank,  3  La.  An. 

186;  48  Am.  Dec.  447,  sec. 

460. 

V.  Heath,  50  Miss.  795,  sec.  399. 

Estabrook  v.  Earle,  97  Mass.  302,  sees. 

414,  416,  428. 
Evans  V.  Adams,  81  Pa.   St.  443,  sec. 
434. 
V.  Matlock,  8  Phila.  271,  sec.  500. 
V.  Mohn,  55  Iowa  302,  sec.  522. 
V.  Monat,  4  Jones  Eq.   213,  sec. 
342. 
Everdell  v.  Sheboygan  etc.  E.  Co.,  41 

V/is.  395,  sees.  330,  348,  429. 
Everett  v.  Harrin,  48  Me.  537,  sec.  421. 
Exchange  Bank  v.  Gulick,  24  Kan.  359, 
sec.  392. 
v.  McLoon,  73  Me.  498; 
4  Am.     Eep.   388, 
sec.  437. 


r. 


Eain  V.  Jones,  3  Head  308,  sees.  .375,  51.3. 
Eairchikl  v.  Lampron,  37  Vt.  407,  sees. 

487,  491. 
Fairfield  V.  Madison  Manuf.  Co.  38  Wis. 

346,  sec.  399. 
Fanning  v.  First  National  Bank,  76  111. 

53,  sec.  409. 
Fanton  v.  Fairfield  Co.  Bank,  23  Conn. 

485,  sees.  354,  471. 
Farley  v.  Bloodworth,  66  Ga.  349,  sec. 

389. 
Farmer  v.  Simjjson,  6  Tex.  303,  sec.  502. 


Farmers  Back  v.  Beaston,  7  GiU  &  J. 

421;    28    Am.    Dec. 

220,  sees.   404,   420, 

421,  424. 

V.  Franklin  B'k,  31  Md- 

404,  sec.  518. 
V.  Gettenger,  4  W.  Va. 
305,  sec.  517. 
Farmers  etc.  Bank  v.  King,  57  Pa.  St. 

202,  sees.  416,  428. 
Farmers  and  Merchants  Bank  v.  Wells, 

23  Minn.  475,  sees.  338,  412. 
FarweU  v.  Howard,  26  Iowa  381,  sec.  327. 
FauJkner  v.  Waters,  11  Pick.  473,  sees. 

444,  449. 
Faulks  V.  Heard,  31  Ala.  516,  sees.  521, 

524. 
Faull  V.  Alaska  etc.  Co.  8  Sawyer  420;  14 
Fed.  Eep.  657,  sees.  342,  357, 
448. 
V.  Tinsman,  36  Pa.  St.  108,  sec. 
471. 
Faxon  r.  Mansfield,  2  Mass.  147,  sec.  513. 
Fay  V.  Jones,  18  Barb.  340,  sees.  354, 471. 
V.   Eeager,   2  Sneed  (Tenn.)    200, 

sees.  375,  513. 
V.  Sears,  111  Mass.  154,  sees.  390 

466,  4G8,  472. 
V.  Smith,  25  Vt.  010,  sees.  484,  518.. 
Fearey  r.  Cimimings,  41  Mich.  376,  sees. 

327,  396. 
Fearle  &  Lewis,  Hx  parte,  13  jMo.  467;  53 

Am.  Dec.  155,  sees.  420,  421. 
Featherstone  v.  Compton,  8  La.  An.  285, 

sec.  405. 
FeUows  V.  Duncan,  13  Met.  332,  sec.  447. 
V.  Smith,  131  Mass.  363,  sees. 
449,  483. 
Fenton  v.  Black,  10  Mo.  App.  536,  sees. 

437,  451. 
Field  V.  Crawford,  6  Gray  116,  sees.  411, 
410. 
V.  Jones,  11  Ga.  413,  sec.  424. 
V.  Mayor  of  N.  Y.,  2  Seld.  179, 

sec.  335. 
V.  McKinney,  60  !Miss.  763,  sees. 

436,  527. 
V.  Watkins,  5  Ark.  672,  sees.  375, 

513,  518. 
V.  Wood,  9  Iowa  249,  sec.  522. 
Fifield  V.  Wood,  9  Iowa  249,  see.  525. 
Final  v.  Backus,  18  INIich.  218,  sec.  465. 
Finch  V.   Bullock,   10  Phila.   318,  sec. 

392. 
Finney  v.  Ackerman,  21  Wis.  268,  sec. 

395. 
Firebaugh  v.  Stone,  36  Mo.  Ill,  sec.  499. 
Fii-str.  Miller,  4  Bibb  (Ky.)  311,  sees. 
330,  347,  404,  421. 
Baptist  Ch.  v.  Hyde,  40  HL  150, 

sec.  520. 
Kat'lB'kr.  Davenport  etc.  E.  Co., 
45  Iowa  120,    sees. 
330,  348,  429. 
V.  Dubuque  etc.  E.  Co., 
52  Iowa  378;  Am. 
Eep.  280,  sec.  482. 
V.  Gan(!!y,  11  Neb.   431, 

V,  MiUer*  45  Mich.  413, 
sees.  497,  502,  512. 


1 


TABLE   OF   CASES. 


739 


First  Xat'l  E'k  v.  Perry,  45  Iowa226,  sec. 
440. 
V.  Weckler,  52  Md.   30, 
sec.  358. 
Fish  V.  Fieltl,  19  Vt.  141,  sec.  447. 

V.  Keeney,  91  Pa.  St.  138,  sees.  402, 
435. 
Fisher  v.  Hall,  44  Mich.  493,  sec.  399. 
V.  Taylor,  2  Kawle  33,  sec.  428. 
Fisk  V.  Brackett,  32  Vt.  798,  sec.  464. 
V.  Herrick,  6  Mass.  271,  sees.  353, 

490. 
V.  Weston,  5  Me.  410,  sec.  435. 
Fitch  I'.  Manhattan  Ins.  Co.   23  Kan. 
30(5,  sees.  391,  392. 
V.  Waite,  5  Conn.  117,  sees.  329, 
407,  449. 
Fitchett  V.  Dolbee,  3  Har.  267,  sees.  425, 

426. 
Fithian  v.  N".  Y.  etc.  R.  Co.  31  Pa.  St. 

114,  sees.  385,  497. 
Fitzgerald  v.   Caldwell,   1   Yeates  274; 
2  Dall.  215;  4  DaU.  251, 
sees.  500,  501,  531. 
V.  Hollingsworth,  14Neb.  188, 
sees.  428,  437,  451. 
Fitzsimmons  v.  Carroll,  128  Mass.  401, 

sec.  402. 
Flanagan  v.  Wood,  33  Vt.  332,  sees.  349, 

4.9,  430. 
Fhmdro,  Be,  20  Him  36,  sec.  497. 
Fljtcher  V.  Fletcher,  7  N.  H.  452;  28 

Am.  Dec.  350,  sec.  407. 
Flint  V.  Flint,  0  Allen  34,  sec.  467. 
Flower  v.  Parker,  3  ISIason  247,  sec.  502. 
Fogg  V.  Wooster,  49  N.  H.  503,  sec.  377. 
Folcottr.  Ogden,  1  Black.  H.  135,  sec.  464. 
Folsom  V.  Haskell,  11  Cush.  470,  sees. 

335,  490. 
Force  v.  Brown,  32  N.  J.  Eq.  118,  sees. 

404,  428. 
Ford  V.  Detroit  Dry  Dock  Co.  50  Mich. 

358,  sec.  491. 
Ford  V.  Hurd,  4  Smedes  and  M.  683,  sec. 
405. 
V.  Woodward,  2  Smedes  and  M.  260, 
sees.  399,  405. 
Forepaugh  v.  Appold,  17  B.  Mon.  625, 

sec.  465. 
Fors  V.  Nutting,  14  Gray  484,  sec.  464. 
Forster  v.  Fuller,  6  Mass.  58,  sec.  453. 
Fortune  v.  City  of  St.  Louis,  23  Mo. 
239,  sec.  419. 
V.  State  Bank,  4  Ala.  385,  sec. 
462. 
Foster -y.  Dudley,  30  IST.  H.  463,  sees. 
447,492. 
V.  Jones,  15  Mass.  185,  sees.  492, 

495. 
V.  Libliy,  24  Me.  448,  sec.  377. 
V.  Potter,  37  Mo.  525,  sec.  441. 
V.  SafiFell,  1  Swan  90,  .sec.  380. 
V.  Sinker,  4  Mass.   450,  sec.  466. 
V.  Walker,  2  Ala.  177,  sees.  466, 

472,  481. 
V.  White,  9  Port.  221,  sec.  471. 
Fowler  v.  McClelland,  5  Ark.  188,  sec. 
426. 
V.  Pittsburg  etc.  R.  Co.  35  Pa. 
St.  22,  sees.  330,  340,  429, 
430. 


Fowler  v.  Williamson,  52  Ala.  16,  sees. 

471,  481. 
Fox  V.  Reed,  3  Gratt.  81,  sec.  514. 
Frank  v.  Frank,  6  Mo.  App.  588,  sees. 

392,  397,  404,  428. 
Franklin  Ins.  Co.  v.  West,  8  Watts  & 

S.  350,  sees.  331,  338,  370,  453. 
Freeman  v.  Grist,  1  Dev.  (N.  C.)  217, 
sec.  338. 
V.  Miller,  51  Tex.  443,  sees. 
386,  399;  53  Tex.  372,  sec. 
389. 
Freidenrich  v.  Moore,  24  Md.  295,  sees. 

522,  525. 
French  v.  Rogers,  16  K.  H.  177,  sec.  353. 
Frizzell  v.  Willard,  37  Ark. '478,  sees. 

359,  412. 
Frost  V.  Patrick,.  3  Smedes  &  M.  783,  sec. 

523._ 
Frothingham  v.  Haley,  3  Mass.  68,  sec 

449. 
Fuller,  In  re,  79  111.  99,  sec.  395. 

V.  Jewett,  37  Vt.  473,  sec.  407. 
V.  O'Brien,  121  Mass.  422,  seca 
452,  473. 
Fulweileri;.  Hughes,  17  Pa.  St.  440,  sees. 

479,  484,  518. 
Funkhouser  v.  How,  24  Mo.  44,  sec.  461. 

G. 

Gaffney  v.  Bradford,  2  Bailey  441,  sees. 

458,  461. 
Gage  V.  HiU,  43  Barb.  44,  sec.  402. 

V.  Stimson,  26  Minn.  64,  sec.  435. 
Gager  v.  Watson,  11  Conn.  168,  sec.  497. 
Gails  V.  Schooner  Osceola,  14  La.  An. 

64,  sec.  475. 
Gaines  v.  Beirne,  3  Ala.  114,  sec.  353. 
Galego  V.  Galego,  2  Brock.  C.  C.  285, 

sec.  501. 
Galena  etc.  R.  Co.  v.  Menzies,  26111. 121, 

sec.  465. 
Galena  etc.  R.  Co.  v.  Sthal,  103  111.  G7, 

sec.  407. 
Gardner  v.  Lacklan,  4  Mylne  &  C.  129, 

sees.  469,  471. 
Garland  v.  Harrington,  51  N.  H.  409, 
sec.  470. 
V.  McKetrick,  52  Wis.  261,  sec. 
326. 
Garrett  v.  Cheshire,  69  N.  C.  396;  12 

Am.  Rep.  647,  sec.  395. 
Garrott  v.  Jafifrey,  10  Bush.  413,  sec.  432. 
Gassett  v.  Grant,  4  Met.  486,  sees.  404, 

427. 
Gee  V.  Cummings,  2  Hayw.  (jST.  C.)  398, 
sec.  520. 
V.  Warwick,'  12  Hayw.  (N.  C.)  354, 
sees.  426,  520. 
Geer  v.  Chapel,  11  Gray  18,  sec.  447. 
George  V.  Ralls  Co.,  3'McCrearyC.  C. 

181,  sees.  470,  473,  485. 
Georgia  Ins.  Co.  v.  Oliver,  1  Ga.  38,  sec. 

531. 
Gevjv.  Ehrgood,  31  Pa.  St.  329,  sec.  409. 
Gerrish  v.  Sweetzer,  4  Pick.  374,  sec.  469. 
Getchell  v.  Chase,  37  N.  H.  106,  sees. 

327,   328,  447;  124    Mass.   366,    sees. 

338,  403,  479,  486,  510. 
Gibbons  v.  Cherry,  53  Md.  144,  sec.  389, 


740 


TABLE    OF    CASES. 


Gibson  v.  Cooke,  20  Pick.  1.5;  32  Am. 

Dec.  194,  sees.  46.5,  475,  482. 

V.  Finly,  4  Md.  Ch.  75,  sec.  4(55. 

Giddings  v.  Coleman,  12  N.  H.  153,  sees. 

4;;4,  481. 
Gies  V.  Bechtner,  12  Minn.  279,  sees. 

440,453. 
Gildersleve  v.  Carroway,   19  Ala.   246, 

sec.  505. 
Giles  V.  Ash,  123  Mass.  353,  sees.  371, 

435. 
Gill  V.  Cubitt,  3  Bam.   &  C.  466,  sec. 

403. 
Gillett  V.  Fairchild,  4  Denio  80,  sec.  465. 
Gi!man  r.  Contra  Costa  Co.   8  Cal.  52, 

sec.  422. 
Gilmer  v.  Camaban,  81  Pa.  St.  217,  sec. 

329. 
Girard  P.  Ins.   Co.  v.  field,  45  Pa.  St. 

129,  sec.  453. 
Glassel  v.  Thomas,  3  Leigh  113,  sec.  515. 
Gleason  v.  Gage,  2  Allen  410,  sec.  532. 
Glenn  v.  B.  &  S.  Glass  Co.,  7  jMd.  287, 
sec.  412. 
V.  Gill,  2  Md.  1,  sees.  404,  420, 

424. 
Iron  Works,  In  re,  17  Fed.  Pep. 
324,  sec.  338. 
Godbold  V.   Bass,   2  Rich.  (S.  C.)  202, 

sec.  427. 
Goddard  v.  Hapgood,  25  Vt.  351;  60  Am. 

Dec.  272,  sec.  338. 
Godden  v.  Cowhurst,  10  Sim.  642,  sec. 
428. 
V.  Pierson,    42  Ala.  370,  sees. 
335,  490. 
Godfrey  v.  Macomber,  128  Mass.  188, 

sees.  394,  449,  483. 
Goldr.  Housatonic  P.   Co.,  1  Gray  424, 

sec.  343. 
Golson  V.  Powell,  32  La.  An.  521,  sees. 

371,  471. 
Goode  V.  Holcombe,  37  Ala.  94,  sec.  .521. 
Goodman  v.  Harvev,  4  Ad.  &  E.  870,  sec. 
463." 
V.  Meriden  Britannia  Co.,  Pep. 

Dec.  19,  1883,  sec.  473. 
V.  Simonds,  20  How.  343,  sec. 
463. 
Gordon  v.  Coolidge,  1  Sumn.  C.  C.  537, 

sec.  380. 
Gore  V.  Clisby,  8  Pick.  555,  sees.  329, 407, 

437. 
Gorman  v.  Swaggerty,  4  Sneed  560,  see. 

426. 
Gouch  V.  Tolman,  10  Cush.  104,  see.  380. 
Gould  V.  ileyer,  36  Ala.  565,  sees.  523, 524. 
Gove  V.  Varrell,  58  :N'.  H.  78,  sec.  447. 
Grace  v.  Maxfield,  6  Hmnph.  328,  sec. 

447. 
Gracy  v.  Coates,  2  McCord  224,  sec.  530. 
Graham  v.  Moore,  7  B.  Mon.  53,  sec. 

447. 
Grant  v.  Shaw,  16  Mass.  341;  8  Am.  Dee. 

142,  sees.  411,  442,  444,  449. 
Graves  v.  Cooper,  8  Ala.  811,  sees.  509, 
521. 
V.  Kav,  3  Barn.  &  Adol.  313,  see. 

467. 
V.  "Walker,  21  Pick.   160,  sees. 
377,  523. 


Gray  v.  Badgett,  5  Ark.  16,  sec.  514. 

V.  Henby,  1  Smedes  &  M.  598,  sec. 
497. 
Grayson  v.  Veeche,  12  Mart.  688;  13  Am.  - 

Dec.  384,  sec.  457. 
Great  West.  Tel.  Co.  He,  5  Biss,  333,  sees. 

458,  463. 
Greathouse  v.  Smith,  4  lU.  .541,  sec.  497. 
Green  v.  Doughty,  G  N.   H.   572,  sees. 
439,  479. 
V.  Farmers  etc.  Bank,  25  Conn. 

452,  sees.  344,  413. 
V.  Gillett,  5  Day  485,  sees.  464, 

465,  480. 
V.  Nelson,  12  IMet.  537,  sec.  514. 
V.  Powley,  1  Pittsb.  1,  sec.  419. 
Greene  r.  Tripp,  11  P.  I.  424,  sec.  356. 
Greenleaf  v.  Perrin,  8  X.  H.    273,  sees. 

327,  447. 
Greentree  v.  Posenstock,  61  X.  Y.  593, 

see.  504. 
Greenwood  v.  Rector,  Hemp.  C.  C.  708, 

sec.  494. 
Greer  v.  Powell,  1  Bush  489,  sees.  458, 
459. 
V.  Powlev,   1  Pittsb.  1,  sees.  345, 
360. ' 
Gregg  V.  Hilson,  8  Phila.  91,  sees.  .333, 349. 
Gregory  v.  Hjggins,   10  Cal.  339,  sees. 

458,  460. 
Gridley  v.  Harraden,  14  Mass.  496,  sec. 
492. 
r.  Phillips,  5  Kan.  349,  sec.  334. 
Griel  V.  Loftin,  65  Ala.  591,  see.  392. 
Griffin  v.  Wilcox,  21  Ind.  370,  sec.  465. 
Grissom  v.  Reynolds,  1  How.  (Miss. )  570, 

sec.  507. 
Groome  v.  Lewis,  23  Md.  137,  sec.  424. 
Grosvenor  t;.  Atlantic  Fire  Ins.  Co.,  17 
jST.  Y.  391,  sec.  471. 
V.  Farmers  etc.  Bank,  13  Me. 
104,  sec.  407. 
Groves  v.  Brown,  11  Mass.  334,  see.  525. 
Guild  V.  Holbrook,  11  Pick.  101,  sees. 

407,  449. 
Guither  v.  Ballew,  4  Jones,  488,  sec.  420. 
Gunn  V.  Howell,  35  Ala.  144,  sees.  399, 

503,  505;  27  Ala.  063,  sees.  521,  524. 
Gutterson  v.  Morse,  58  X.  H.  529,  sec.  412. 


H. 


Hackett  v.  Martin,  8  Me.  77,  sees.  471, 

472. 

Haekleyr.  Kanitz,  39  Mich.  398,  sec.  389. 

V.    Swigert,  5  B.   Mon.  86;  41 

Am.  Dec.  256,  sec.  420. 

Hadley  v.  Peabody,  13  Gray  200,  sec.  419. 

Hagedon  v.  Bank  of  Wis.,  1  Pinney  61, 

sec.  424. 
Haines  v.  Haines,  6  Md.  435,  see.  453. 
V.  OConnor,  5 111. App. 213,  sees. 
391  399. 
Hair  v.  Lowe,  19  Ala.  224,  see.  527. 
Hall  V.  Brooks,  25  Hun  577,  see.  389. 
V.  Daniel,  62  Ga.  620,  sees.  382, 400, 

512. 
V.  FUter  :Manuf.  Co.,  10 Phila.  370, 

sees.  330,  349,  429,  430. 
V.  Hale,  8  Conn.  336,  sec.  463. 


TABLE  OP  CASES. 


741 


Hall  V.  Magee,  27  Ala.  414,  sees.  447, 473. 
V.  Page,  4  Ga.  428,  sec.  441. 
V.  Rose  Hill  etc.  R.  Co.,  70 lU.  673, 

sec.  408. 
Halpin  v.  Barringer,  26  La.  An.  170,  sec. 

410. 
Hamilton  v.  Catchings,  58  Miss.  92,  sec. 
474. 
V.  Marks,  52  Mo.  78;  14  Am. 
Rep.  391,  sec.  463:  63  Mo. 
.    107,  sec.  463. 
Hammett  v.  Morris,  55  Ga.  644,  sec.  327. 
Hancock  v.  Colyer,  99  Mass.  187,  sees. 

407,  449. 
Hanna  v.  IBry,  5  La.  An.  651;  52  Am. 

Dec.  606,  sec.  420. 
Hannibal  etc.  R.  Co.  v.  Crane,  102  111. 

249,  sec.  343. 
Hansen  v.  Butler,  48  Me.  81,  sees.  404, 427. 
Hanson  v.  Davis,  19  N.  H.  133,  sees.  353, 

491. 
Hardesty  v.  CampbeU,  29  Md.  533,  sec. 

426. 
Hardy  v.  Hunt,  11  Cal.  343,  sees.  374, 

410. 
Harmon  v.  Birchard,  8  Blackf .  418,  sees. 

399  404   504. 
Harney  v.   Eliis,  11  Smedes  &  M.  348, 

sec.  400. 
Harper  v.  Butler,  2  Peters  239,  sec.  464. 
Harrell  v.  Whitman,  19  Ala.  138,  sees. 

335,  447,  448,  490.  _ 
Harris  v.  Aiken,  3  Pick.  1,  sec.  367. 

V.  Phoenix  Ins.  Co.  35  Conn.  310, 

sec.  379. 
V.  Somerset  etc.  R.  Co.,  47  Me. 
298,  sec.  511. 
Hart  V.  Anthony,  15  Pick.  445,  sees.  344, 
413. 
V.  Dahlgreen,  16  La.  559,  sees.  377, 

389,  523. 
V.  Forbes,  60  Miss.  745,  sec.  438. 
Hartle  v.  Long,  5  Pa.  St.  491,  sees.  425, 

420. 
Hartley  v.  Tapley,  2  Gray  565,  sec.  470. 
Hartman  v.  Olvera,  54  Cal.  61,  sec.  416. 
Harvey  r.  Commonwealth  of  Va.,  lAm. 

L.  J.  194,  sec.  418. 
Haselton  v.  Monroe,  18  N".  H.  598,  sec. 

500. 
Haskell  v.  Haskell,  8  Met.  545,  sec.  428. 
Haskins  v.  Johnson,  24  Ga.   625,  sees. 

359,  487. 
Hassle  v.  God  is  With  Us  Cong.,  35  Cal. 

378,  sees.  335,  448. 
Hastings  v.  Baldwin,  17  Mass.  551,  sec. 

441. 
Haswell  v.  Worsham,  2  Humph.  524;  37 

Am.  Dec.  572,  sec.  421. 
Hatch  V.  Dennis,  10  Me.  244,  sec.  47L 
Hathaway  v.  Reed,  127  Mass.  136,  sees. 
371,  4.35. 
V.  Russell,  16  Mass.  472,  sees. 
353,  359,  487,  514. 
Haum  V.  Low,  2  N.  H.  13,  sec.  440. 
Haust  V.  Burgess,  4  Hughes  C.  C.  560, 

sec.  428. 
Haven  v.  Wentworth,  2  N.  H.  93,  sees. 

328,  330,  437,  447. 
Hawes  v.  Langton,  8  Pick.  67,  sees.  308, 
390. 


Hawea  v.  Waltham,  18  Pick.  451,  sees. 

353,  491. 
Hawkins  v.  Graham,  128  Mass.  20,  sec. 

388. 
Hawley  v.  Atkinson,  39  Conn.  309,  sec. 

353. 
Hawthorn  v.  City  of  St.  Louis,  11  Mo. 
60,  sec.  419. 
a         V.  IJnthank,  52  Iowa  507,  sees. 
375,  473. 
Haynes  v.  Gates,  2  Head  598,  sec.  465. 
Hays  V.  Anderson,  57  Ala.  374,  sees.  333, 
350,  403. 
V.  Lycoming  etc.  Co.,  99  Pa.  St. 
621,  sec.  342. 
Haywood  v.  Clerk,  50  Vt.  612,  sec.  401, 

409. 
Hazard  v.  Agricultural  Bank,  11  Rob. 

(La.)  326,  sec.  331. 
Hazeltine  v.  Page,  4  Vt.  49,  sees.  381, 

477. 
Hazen  v.  Emerson,  9  Pick.  144,   sees. 

306,  379. 
Hazzard  v.  Franklin,  2  Ala.  (N.  S.)  349, 

sec.  528. 
Head  v.  Merrill,  34  Me.  586,  sec.  360. 
Hearn  v.  Adamson,  64  Ga.  608,  sec.  388. 
V.  Crutcher,   4  Yerg.    401,    sees. 
421,  428,  441. 
Hebel  v.  Amazon  Ins.  Co.  33  Mich.  400, 

sees.  336,  343,  359,  360,  361. 
Hecht  V.  Green,  61  Cal.  269,  sees.  397, 

437. 
Helme  v.  Pollard,  14  La.  An.  306,  sees. 

381,  396. 
Hemmenway  v.  Pratt,  23  Vt.  332,  sec. 

447. 
Henry  v.   Gold  Park  M.  Co.  15  Fed. 

Rep.  649,  sec.  498. 
Herring  v.  Johnson,  5  Phila.   443,  sec. 

530. 
Hess  V.  Shorb,  7  Pa.  St.  231,  sees.  425, 

420,  523,  528. 
Hewitt  V.  FoUett,  51  Wis.  265,  sec.  435. 
V.  Wagar  Lumber  Co.,  38  Mich. 

701,  sec.  435. 
V.  Wheeler,  22    Conn.   557,   sec. 
456. 
Hibbard  v.  Clark,  56  K  H.  155;  22  Am. 

Rep.  432,  sec.  513. 
Hibernia  etc.   Soc.  v.  Superior  Court,  56 

Cal.  205,  sec.  389, 
Hicks  V.  Chapman,  10   Allen  403,  sec. 
427. 
V.  Gleason,  20  Vt.  139,  sees.  338, 
421. 
Hightower  v.   Slaton,  54  Ga.   108;    21 

Am.  Rep.  273,  sees.  404,  422. 
Hildreth  v.  Pinkerton  Academy,  29  N". 

H.  227,  sec.  453. 
Hill  V.  Beach,  12  N.  J.  Eq.  31,  sees.  421, 
490. 
V.  Bowman,  35  Mich.  191,  sec.  447. 
V.  Kroft,  29  Pa.  St.  186,  sees.  458, 

400,  403. 
V.  La  Crosse  etc.  R.  Co.,  14  Wis. 
291,  sees.  404,  42L 
Hinkelv.  Currin,  2  Humph.  137,  sec.  520; 

1  Humph.  74,  sec.  532. 
Hinkley  v.  Williams,  1  Cush.  490,  sec. 
416. 


742 


TABLE    OF    CASES. 


Hinsdill  V.  Safford,  11  Yt.  309,  sees.  458, 

460. 
Hitchcock  V.  Edgerton,  8  Vt.  202,  sec. 
407. 
V,  Lancto,  127  Mass.  514,  sec. 

473. 
V.  Miller,  48  Mich.  603,  sees. 

450,  470. 
V.  Watson,    18  lU.  299,  sec. 
532.  • 

Hitt  V.  Lacy,  3  Ala.  104;  36  Am.  Dec. 

440,  sec.  492. 
Hoag  V.  Hoag,  55  N.  H.  172,  sec.  457. 
Hoar  V.  Marshall,  2  Gray  251,  sec.  42.5. 
Hobbs  V.   INIemphis  Ins.   Co.,  1  Sneed 

444,  sec.  471. 
Hocaday  v.  SaUee,  23  Mo.  219,  sec.  416. 
Hodges  V.  Graham,  25  La.  An.  380,  sec. 

33S. 
Hoffman  v.  Fitzwilliam,  81  111.  529,  sec. 
329. 
V.  Simon,   52  jNIiss.    302,   sec. 
524. 
Hogan  V.  Emerson,  9  Pick.  144,  sec.  520. 
Hoith  V.  Pfeifle,  42  Mich.  31,  sees.  359, 

399  487. 
Holbrook  v.  Baker,  5  Me.  309;  17  Am. 
Dec.  236,  sec.  440. 
V.  "Waters,  19  Pick.  354,  sees. 
410,  425. 
Holdman  v.  Hillsborough  etc.  R.  Co.,  2 

Handy,  101,  sec.  437. 
Holdship  V.  Patterson,  7  Watts  547,  sec. 

428. 
Holland  v.  Smith,  11  Mo.  App.  6,  sec. 

504. 
Holman  v.  Fisher,  49  Miss.  472,  sec. 

420. 
Holt  V.  Experience,  26  Ga.  113,  sec.  419. 
Holton  V.  South  Pac.  E.  Co.  50  Mo.  151, 

sees.  381,  396. 
Home  Mut.  Ins.  Co.  v.  Gamble,  14  Mo. 

407,  sees.  507,  512. 
Homestead  Cases,  22  Gratt.  266;  12  Am. 

Rep.  507,  sec.  395. 
Hood  V.  Parker,  03  Ga.  510,  sec.  389. 
Hooper  V.  Hills,  9  Pick.  435,  sees.  407, 

479. 
Hooton  V.  Gamage,  11  Allen  354,  sec. 

499. 
Hopkins  v.  Ray,  1  Met.  79,  sec.  407. 
Hopson  r.  Dinan,  48  Mich.  612,  sees. 

449,  470. 

Horton  v.  Bayne,  52  Mo.  531,  sec.  463. 

V.  Grant,  56  Miss.  404,  sec.  374. 

V.  Simimers,  62  Ga.   302,   sees. 

401,  409. 

Hosldns  V.  Johnson,  24  Ga.   625,  sec. 

353. 
Houghton  V.  Lee,  50  Cal.  101,  sec.  409. 
Housmans  v.  Hilbron,  23  Ga.  186,  sec. 

327. 
Houston  V.  Nowland,   7  Gill  &  J.   480, 
^sec.  480. 
V.  Walcott,  1  Iowa  86,  sec.  505. 
V.  Wolcott,   7  Iowa  173,  sees. 
372,  374,  382. 
Hovey  v.  Crane,  12  Pick.  167,  sec.  383. 
Hovey  r.  Hovey,  55  N.  H.  172,  sec.  341. 
How  V.  Field,  5  Mass.  390,  sec.  329. 
V.  White,  49  Cal.  658,  sec.  407. 


Howard  v.  Card,  6  Me.  353,  sees.  440, 441. 
V.  Crawford,  21  Tex.  399,   sec. 

532. 
V.  McLaughlin,  98  Pa.  St.  440, 
sec.  490. 
Howe  V.  Jones,  57  Iowa  130,  sees.  435, 
465. 
V.  Ould,  28  Gratt.  1,  sees.  458,463. 
Howell  V.  Freeman,  3  Mass.   121,  sees. 

495,  496. 
Howland  v.  Spencer,  14  N.  H.  530,  sec. 

407. 
Howley  v.  Atherton,  39  Conn.  309,  sec. 

487. 
Howry  v.  Eppinger,  34  Mich.  29,  sec.  463. 
Hoyt  V.  Christie,  51  Vt.  48,  see.  426. 

V.  Robinson,    10  Gray   371,    sees. 

353,  359,  487. 
V.  Swift,  13  Vt.  129;  37  Am.  Dec. 
586,  sees.  .335,  428,  448,  490. 
Hubbard  v.  WiLLiams,  1  Minn.  54,  sees. 

458,  459. 
Hudson  V.  Hunt,  5  ZST.  H.  538,  sees.  359, 
440,  441,  487. 
V.  McConneU,  12  111.  170,  sec. 
465. 
Huescamp  v.  Van  Leuven,  56  Iowa  663, 

S6C.   k)^*^. 

Huff  V.  Mills,  7  Yerg.  42,  sees.  460,  492. 
Hugg  V.  Booth,  2  Ired.  (X.  C.)  282,  eecs. 

328,  447. 
Hughes  V.  Monty,  24  Iowa  499,  sec.  510. 
Hull  V.  Blake.  13Mass.l53,  sees.  438, 502. 
Hulbert  v.  Stimson,  6  Blackf.  398,  sec. 

497. 
Humphrey  v.  Warren,  45  Me.  216,  sees. 

370,  378. 
Hunt  V.  Coon,  9  Ind.  537,  see.  335. 

V.  Stevens,  3  Ired.  365,  sees.  404, 
420. 
Huntingdon  v.  Risdon,  43  Iowa  517,  sees. 

473,  4^5. 
Huntly  V.  Stone,  4  Wis.  91,  sees.  412,438. 
Huntress  v.  Burbank,  111  Mass.  213,  sec. 

531. 
Huot  V.  Ely,  17  Fla.  775,  sees.  416,  458, 

460. 
Hurlburt  v.  Hicks,  17  Yt.  193;  44  Am. 

Dec.  329,  sees.  404,  421,  431,  5.30. 
Hutchins  v.  Evans,  13  Vt.  451,  sees.  458, 
400. 
V.  Hanley,  9  Yt.  295,  sees.  338. 

357. 
v.  Watts,  35  Yt.  360,  sec.  469, 


I. 


Ide  V.  Harwood,  30  Minn.  191,  sec.  407. 
Iglehart  v.  Moore,  21  Tex.  501,  sec.  458. 
I'lL  Cent.  R.  Co.  v.  Cobb,  48  lU.  402,  sees. 
412, 444. 
V.  Weaver,  54  lU.  319, 
see.  393. 
Ingalls  V.  Dumett,  6  Me.  79,  sec.  518. 
International  Bank  v.  German  Bank,  71 

Mo.  183;  36  Am.  Rep.  468,  sec.  464. 
Ins.  Co.  of  Pa.  v.  Phcenis  Ins.  Co.,  71 

Pa.  St.  31,  sec.  465. 
Irvine  v.  Lumberman's  Bank,  2  Watts  & 
S.  190,  sec  500. 


TABLE   OP  CASES. 


743 


Irwin  V.  Pittsburg  etc.  R  Co.,  43  Pa.  St. 

488,  sec.  531. 
Ivens  V.  Ivens,  30  La.  An.   Pt.   1,  249, 

sees.  393,  414. 
Ives  V.  Vanscoyac,  81  111.  120,  sees.  448, 

490. 

J. 

Jackson  v.  Bank  of  U.  S.,  10  Pa.  St.  61, 
sees.  416,  428. 
V.  Shipman,  28  Ala.  488,  sees. 
520,  521,  524,  525. 
Jackson's  Ex'ra  v.  Lloyd,  44  Pa.  St.  82, 

sec.  531. 
Jacobs  V.  Copeland,  54  Me.  503,  sec.  399. 
James  v.  Pellows,  20  La.  An.  116,  sec.  520. 
Jarvis  v.  Wilson,  46  Conn.  90;  33  Am. 

Rep.  18,  sec.  474. 
Jason  V.  Antone,  1.31  Mass.  534,  sec.  470. 
Jaquett  v.  Palmer,  2  Ilarr.  144,  sec.  421. 
Jeffries  v.  Harvie,  38  Miss.  97,  sec.  331. 
Jenks  V.  Osceola  Township,  45  Iowa  554, 

sees.  345,  419. 
Jennings  v.  Summers,  7  How.    (Miss.) 

453,  sees.  452,  473. 
Jewett  V.  Bacon,  6  Mass.  59,  sees.  353, 

359,  486,  510,  519. 

Johann  v.  liefener,  3  Wis.  195,  sec.  510. 

Johns  V.  Johns,  1  Ohio  St.  330,  sec.  408. 

Johnson,  v.  Bloodgood,  1  Johns.  Cas.  51; 

1  Am.  Dec.  93,  sees.  469, 471. 

v.  Carry,  2  Call  33,  sec.  510. 

V.  Delbridge,  35  Mich.  436,  sec. 

530. 
V.  Dexter,  38  Mich.  695,  sec.  390. 
V.  Gorham,  6  Cal.  195,  sees.  338, 

359. 
V.  Griffith,  2  Craneh  C.  C.  199, 

sees.  338,  339,  400. 

V.  Hersey,  70  Me.  74;  35  Am. 

Eep.  303,  sec.  428;  73  Me. 

291,  sec.  44. 

V.  Howard,  41  Vt.  122,  sec.  513. 

V.  Hovle,  3  Head  53,   sees.  375, 

513. 
V.  King,  6  Humph.  233,  sec.  490. 
V.  Lamping,  34  Cal.  293,  sees. 

335,  490. 
V.  McCutchings,  43  Tex.  553, 

sec.  522. 

V.  Pace,  78  111.  143,  sees.  470,  483. 

V.  Thaj^er,  17  Me.  401,  sec.  469. 

Jonea  v.  Bank  of  Northern  Liberties,  44 

Pa.  St.  253,  sec  416. 

V.  Crews,  64  Ala.  368,  sees.  407,  429. 

V.  Etna  Ins.  Co.,  14 Conn.  501,  sec. 

416. 
V.  Gorham,  2  Mass.  375,  sec.  423. 
V.  Howell,  1(5  Ala.  695,  sec.  523. 
V.  Hunting-ton,  9  Mo.  249,  sec.  334. 
V.  Jones,   1  Bland's   Ch.    443;  18 

Am.  Dec.  327,  sec.  421. 
V.  Norris,  2  Ala.  526,  sec.  407. 
V.  N.  Y.  &E.  R.  Co.,  1  Grant's 

Cas.  4.54,  sees.  343,  352,  498. 
V.  Thompson,  12  Cal.  198,  sec.  351. 
V.  Tracy,  75  Pa.  St.  417,  sec.  519. 
V.  Winchester,  6  N.  H.  497,  sees. 

344,  413. 
V.  Witter,  13  Mass.  304,  sees.  354, 
471. 


Jones  V.  Wood,  30  Vt.  268,  sec.  501. 
Jordon  v.  Gillen,  44  N.  H.  424,  sec.  46.5. 

V.  Gower,  57  Tenn.  103,  sec.  395. 

V.  Harmon,  73  Me.  259,  sec.  435. 
Judah  V.  Judd,  5  Day  534,  sec.  472. 
Junction  R.  Co.  v.  Cleanay,  13  lud.  161, 
sec.  460. 

K. 

Kahnweiler  v.  Anderson,  78  N.  C.  136, 

sec.  482. 
Kane  v.  Clough,  36  Mich.  436;  24  Am. 

Rep.  599,  sees.  371,  402,  410,  470. 
Kapp  V.  Teel,  33  Tex.  811,  sec.  458. 
Karnes  v.  Pritchard,  36  Mo.  135,  sec.  388. 
Katz  V.  Sonsby,  34  La.  An.  588,  sec.  523. 
Kauffman  v.  Jacobs,  49  Iowa  432,  sec.  450. 
Kearney  v.  Nixon,  19  La.  An.  16,  sees. 
3T0,  378. 
V.  Vau'^hn,  50  Mo.  284,  sec.  334. 
Keating  v.  Spink,  3  Ohio  St.  124,  sec.  421. 
Keelt'.  Ogden,  5  Mon.   (Ky.)  362,  sees. 

377,  389,  523. 
Keep  V.  Sanderson,   12  Wis.   3c2,  sees. 

381,  396. 
Keith  V.  Harris,  9  Kan.  386,  sec.  497. 
Kelley  v.  Lane,  42  Barb.  594,  sees.  434, 
439. 
V.  Weymouth,  68  Me.  197,  sec. 
380. 
Kellogg  V.  Fancher,  23  Wis.  21,  sec.  463. 
f.  Freeman,  50  Miss.  127,  sec. 
327. 
Kelly  V.  Bowman,  12  Pick.  383,  sees.  368, 
377  523. 
V.  Crapo',  45  N.  Y.  86;  6  Am.  R. 

499,  sec.  402. 
V.  McMinniman,  58  N.  H.  288,  sec. 

340. 
V.  Roberts,  40  N.  Y.  432,  sec.  438. 
Kennedy  v.  Aldridge,  5  B.   Mon.   141, 
sees.  422,  521. 
V.  Brent,  6  Craneh  187,  sees. 

331,  338. 
V.  Hibernia  S.   &  L.  Soc,  -38 
Cal.  151,  sec.  330. 
Kergin  v.  Dawson,  6  111.  86,  sec.  440. 
Kes.'iler  v.  St.  John,  22  Iowa  565,  sees. 

439,  479. 
Kettle  V.  Harvey,  21  Vt.  301,  sees.  327, 

447,  450. 
Keys  V.  Rines,  37  Vt.  20.3,  sec.  409. 
Kidd  V.  Shepherd,  4  Mass.  238,  sec.  496. 
Kidder  i;.fPackard,  13  Mass.  80,  sees.  343, 

353,  359,  486. 
Kidderlin  v.  Myer,  2  Miles  242,  sees.  332, 

346. 
Kieffer  v.  Ehler,  18  Pa.  St.  388,  sees.  458, 

460,  463. 
Killsa  V.  Lermond,  6  Me.  116,  sec.  .503. 
Kimball  v.  Gay,  16  Vt.  131;  see.  460. 

V.  McComber,    50   Mich.   362, 

sees.  .371, 436. 
V.  Plant,  14  La.  511,  sees.  458, 
460. 
Kimborough  v.  Davis,  34  Ala.  583,  sec.  471. 
King  V.  Moore,  0  Ala.  100;  41  Am.  Dec. 
44,  sec.  421. 
V.  Murphy,  1  Stew.  228,  sec.  482. 
V.  Pagan,  18  Ark.  583,  sec.  334. 


744 


TABLE    OF    CASES. 


Kinj  V.  "Vance,  4*5  Ind.  246,  sees.  460, 

4>3;j.  483,  484,  502,  518. 
King^levr.  jMissouri etc.  Co.,  14  Mo.  467, 

S33.  4'JO. 
Kinsley  t-.  Evans,  34  Ohio  St.  158,  sec.  458. 
Kir  by  r.  Corning,  54  Wis.  599,  sec.  435. 
Kirkman  v.  Hamilton,  9  Mart.  297,  sees. 

441,  442,  516. 
Klauber  v.  Wright,  52  Wis.  303,  sec.  335. 
Knabb  v.  Drake,  23  Pa.  St.  489,  see.  409. 
Knapp  V.  Alvord,  10  Paige  205;  40  Am. 
Dec.  241,  sec.  482. 
V.  Levanway,  27  Vt.  298,  sec.  339. 
Knefler  v.  Shreve,  78  Ky.  297,  see.  428 
Knight  T.  B.  )wley,  117  Mass.  551,  sec.  407. 
V.  Clyde,  12  R.  I.  119,  sec.  429. 
?•.  Gorham,  4  M3.  492,  sec.  434. 
Knoxr.  Protection  Ins.  Co.,  9 Conn.  433; 
25  Am.  Dec.  33,  sec.  311,  453. 
V.  Schepeler,  2  HiU  (S.  C. )  595,  sec. 
490. 


L. 


Ladd  V.  Gale,  57  N.  H.  210,  sec.  418. 
V.  Jacobs,  64  Me.  347,  sec.  503. 
Laidlaw  v.  Morrow,  44  Mich.  547;  sees. 

399,  534,  521. 
Lake  v.  Reid;  29  Iowa  258;  4  Am.  Hep. 

209,  sec.  433. 
Lamb  v.  Franklin  Manuf.   Co. ,  18  !Me. 
187,  sees.  375,  377,  339,  4S0. 
V.  Stone,  11  Pick.  527,  sees.  393, 439. 
Lamkin  v.  Phillips,  9  Port.  93,  sees.  433, 

437,  4G5,  471. 
Landreyw.Chayret,  5SN".H.  89,  sec.  .510. 
Lane  v.  Felt,  7  Gray  491,  sees.  377,  407. 
V.  Marshall,  1  Heisk.  30,  .sec.  331. 
V.  Norrell,  15  Me.  83,  sees.  411,  412. 
Langdon  v.  Lockett,  G  A!a.  727;  41  iVm. 
Dec.  78,  sees.  421,  424. 
V.  Thompson,  25  Minn.  509,  sec. 
327. 
Langford  v.  Ottumwa  W.  P.  Co.,  53 Iowa 

415,  sec.  597. 
Langley  v.  Berry,  14  IST.  H.  82,  sees.  439, 

475. 
Lannan  v.  Smith,  7  Gray  150,  see.  470. 
I>ar-Te  v.  Moore,  17  Iowa  258,  sees.  471, 

431. 
Larkin  v.  Wibon,  103  Mass.  120,  sec.  343. 
Larraboe  v.  Knight,  09  i\Ie.  320,  sec.  471. 
V.  Walker,  71  Me.  441,  sees.  394, 
4S3. 
Laschear  v.  White,  88  111.  43,  sec.  380. 
Lasley  v.  Sisloff,  7  How.  (Miss. )  157,  sees. 

331,  393. 
Lawrence  v.  Bank  of  Republic,  35  X.  Y. 
320,  sec.  434. 
V.  Lane,  9  111.  354,  sec.  504. 
V.  Smith,  45  X.  H.  533,  sees. 
341,  413. 
Lawton  v.  Branch,  62  Ga.  350,  see.  366. 
Layman  v.  Beam,  6  Whart.  181,  sees.  338, 

357. 
Leo  V.  Selleck,  33  N.  Y.  615;   32  Barb. 

522,  sec.  434. 
Lee:c  r.  Walker,  18  La.  1,  sees.  447,  449. 
Legro  V.  Staples,  16  Me.  252,  sees.  437, 
4G5. 


Leiber  v.  U.  P.  R.  Co.,  49 Iowa  G88,  sees. 

373,  395. 
Leigh  r.  Smith,  6  Ala.  583,  sec.  327. 
Leitoh  V.  Wells,  48  jST.  Y.  585,  sees.  408, 

453,  433. 
Leland  v.  Sabin,  27  K  H.  74,  sec.  465. 
Leslie  v.  Merrill,  58  Ala.  322,  sees.  453, 

432. 
Leasing  v.  Vertrees.  32  Mo.  431,  sec.  -15.5. 
Lems  V.  Dubose,  29  Ala.  219,  sec.  447. 
V.  Dunlap,  57  Miss.  130,  sees.  371, 

3S3,  433,  437,  481. 
V.  Latner,  72  Me.  487,  sec.  438. 
V.  Prenatt,  24  Ind.  98,  sees.  384, 

393. 
V.  Sheffield,  1  Ala.  134,  sec.  529. 
V.  Smith,  2  Cranch  C.  C.  571,  sees. 
447,  456. 
Lieber  V.  St.  Louis  etc.  Ass'n,  33  Mo.  382, 

sec.  492. 
Lightner  v.  Steinagel,  33  HI.  510,  sees. 

421,  426. 
Life  Ins.  Soc.  v.  Pooley,  5  Jur.  X.  S.  129, 

sec.  471. 
Little  V.  Hale,  11  Vt.  482,  sees.  458, 460. 

V.  Owen,  33  Ga.  20,  sec.  531. 
Littlefield  v.  Hodge,  6  Mich.  323,  sees. 
4.58,  459. 
V.  Smith,  17  Me.  327,  sec.  482. 
Littleton  Bank  v.  R.  &  O.  R.  R.,  58  N. 

H.  104,  sec.  .349. 
Livermore  v.  Blood,  40  Mo.  48,  sec.  467. 
Livingston  v.  Dean,  2  Johns.  Ch.  479, 

see.  471. 
Lock  V.  Johnson,  33  Me.  434,  sec.  401. 
Locke  V.  Tippets,  7  Mass.  149,  sees.  492, 

495,  510. 
Locket  V.  Child,  11  Ala.  640,  see.  489. 
Loekhart  v.  Johnson,  9  Ala.  223,  sec.  523. 
Lodor  V.  Baker,  39  K  J.  L.  49,  sees.  346. 

418. 
Loftin  V.  Shackelford,  17  Ala.  455,  sec. 

515. 
Lomerson  v.  Huffman,  25  X.  J.  L.  625, 

sees.  328,  447- 
Long  V.  Crawford,  18  Md.  320,  sec.  437. 

V.  Emsley,  57  Iowa  11,  sec.  422. 
Look  V.  Brackett,  74  Me.  347,  see.  435. 
Loring  v.  Folger,  7  Gray  505,  sec.  505. 
Lorman  v.  Phcenix  Ins.  Co.,  33  Mich.  65, 

sees.  522,  523,  528,  530. 
ijouderman  v.  Wilson,  2  Harr.  &.  J.  379, 

sees.  452,  473. 
Louis  v.  Dunlop,  57  Miss.  130,  see.  472. 
Lovejoy  v.  Albree,  33  Me.  414;  44  Anx. 
Dec.  630,  sees.  344,  41.3. 
V.  Lee,  35  Vt.  430,  sees.  407, 421. 
Lovely  v.  Caldwell,  4  Ala.  684,  sec.  469. 
Lowrey  v.  Stewart,  25  jS".  Y.  241,  sec. 

482. 
Lowry  v.  Clements,  9  Ala.  422,  sec.  363. 
V.    Lumberman's  Bank,  2  Watts 
&  S.  21,  sec.  502. 
Loyless  v.  Hodges,  44  Ga.  647,  sees.  333 

341,  415. 
Lucas  V.  Campbell,  88  HI.  447,  sec.  339. 
Ludlow  V.  Bingham,  4  Dall.  47,  sees.  404, 

4S0. 
Lundie  v.  Bradford,  26  Ala.  512,  sees. 

444,  447. 
Lupton  V.  Cutter,  8  Pick.  298,  see.  407. 


TABLE    OF   cases; 


745 


Lusk  V.  Galloway,  52  Wis.  164,  sec.  302. 
Luton  V.  Hoehn,  72  111.  81,  sec.  498. 
Lyford  V.     Demerritt,    32  K   H.   234, 

sees.  508,  528. 
Lyle  V.  Barker,  5  Binn.  457,  sec.  440. 
Lyman  v.  Orr,  2G  Vt.  119,  sec.  531. 

V.  Parker,  33  Me.  31,  sees.  370, 

378,  390. 
V.  Wood,  42  Vt.  113,  sec.  457. 
Lynde  v.  Watson,  52  Vt.  G48,  sees.  375, 

477,  516,  518. 
Lyndon  v.    (lorham,  1   Gallison  C   C. 

3G7,  sec.  490. 
Lyon  V.  Eussell,  72  Me.  519,  sec.  242. 


M. 


Mack  V.  King,  15  Ala.  66,  sec.  426. 
Mackey  v.  Hodgson,  9  Pa.  St.  438,  sec. 

531. 
Macomber  v.  Wright,  35  Me.  153,  sees. 

353,  486. 
Madison  v.  Andrew,  1  Ves.  Sr.  GO,  see. 

428. 
Magee  v.  Badger,  34  N.  Y.  247,  see.  4G3. 
Mahany  v.  Kephart,  15  W.  Va.  609,  sec. 

342. 
Maher  v.  Brown,  2  La.  492,  sec.  434. 
Mahew  v.  Scott,  10  Pick.  54,  sees.  409, 

411,  444. 
Mahoney  v.  McLean,  28  Minn.  63,  sec. 

392. 
Maine  F.   &  M.  Ins.   Co.  v.  Weeks,  7 

Mass.  438,  sees.  407,  447. 
Malley  v.  Altman,  14  Wis.  22,  sec.  341. 
Manchester  v.  Burns,  45  N.  H.  482,  sec. 

419. 
Mandeville  v.  Welch,  5  Whart.  277,  sees. 

465,  475,  482. 
Mangles  v.  Dixon,  3  H.  L.  Cas.  703,  sec. 

471. 
Mankin  v.  Chandler,  2  Brock.  C.  C.  125, 

sees.  402   494. 
Mann  v.  Buford,  3  Ala.  312;  37  Am.  Dec. 

691,  sees.  349,  431. 
INIansard  v.    Daley,  114  Mass.  408,  sees. 

437,  438,  470. 
Mansfield  v.  New  Eng.  etc.  Co.,  58  Me. 
35,  .sees.  370,  389. 
V.   Rutland   Manuf.    Co.,  52 

Vt.  444,  sec.  428. 
etc.  R.  Co.  V.  Hall,  23  Ohio 
St.  310,  see.  408. 
Manufacturer's  Bank  v.  O.sgood,  12  Me. 

117,  sec.  514. 
Marchand  v.  Noyes,  33  La.  An.   882, 

sec.  522. 
Marks  v.  Freyhan,  16  La.  An.  348,  sec. 
397. 
V.  Reinberg,  16  La.  An.  348,  sec. 
450. 
Marqueze  v.  Le  Blanc,  29  La.  An.  194. 

see.  344. 
Mars  V.  Va.  Home  Ins.    Co.,   17  S.  C. 

514,  sec.  400. 
Marsh  v.  Davis,  24  Vt.  363,  sees.   439, 
470,  504. 
West  etc.  Manuf.  Co.,  46  N. 
Y.  Sup.Ct.  8,  sees.  382, 400. 


Marshall  v.  G.  G.  E.  &  B.  Co.,  5  La. 

An.  360,  sees.  452,  473. 
Marston  v.  Carr,  16  Ala.  325,  see.  407. 
Martin   v.  Foreman,  18  Ark.  249,  sec. 
338. 
V.  Potter,  11  Gray  37,  sec.  480. 
Martz  V.  Detroit  etc.  Co.,  28  Mich.  201, 

sees.  328,  449. 
Marvel  v.  Houston,  2  Harrington,  349, 

sees.  404,  426. 
Marvin  v.  Hawley,  9  :Mo.  378;  43  Am. 

Dec.  547,  sees.  404,  421. 
Masher  v.  Banking  House,  6  Mo.  App. 

598,  sees.  357,  3u3,  404,  421. 
Mason  v.  Ambler,  0  Allen  124,  sees.  473, 
477,  516. 
V.  McCr,mpbell,  2  Ark.  506,  sees. 

380,  381,  393. 
V.  Noonan,  7  Wis.  609,  see.  500. 
Mass.  Natl  Bank  v.  Bullock,  120  Mass. 

83,  see.  335. 
Matheson  v.  Eutledge,  12  Rich.  41,  sec. 

437. 
Mathews  v.  Smith,  13  Neb.  178,  sec.  359. 
Mathis  V.  Clark,  2  Mill  Const.  456;  12 

Am.  Dec.  688,  sec.  519. 
Mathney  v.  Galloway,  12  Smedes  &  M. 

475,  see.  399. 
Matthews  v.  Houghton,  11  Me.  377,  sec. 
502. 
V.  Park,  1  Pittsb.  22,  sees.  425, 
428. 
Mattingly  v.  Boyd,  20  How.  128,  sees. 

329,  331,  344,  500,  513,  531. 
May  V.  Baker,  15  111.  89,  sees.  333,  335, 

448,  490. 
Mayberry  v.  Morris,  62  Ala.  113,  sees. 

458,  46'3. 
Mayer  v.  Chattahoochie  Nat'l  Bank,  51 

Ga.  325,  see.  438. 
Mayes  v.  Phillips,  6  Miss.  547,  sec.  407. 
Mayhew  v.  Davis,  4  McLean  213,  sec. 

513. 
Mayor  v.  Root,  8  Md.  95,  see.  419. 
Mayor  etc.  v.  Rowland,  26  Ala.  498,  sees. 
419,  454. 
V.  Potomac  Ins.  Co.,  2Baxt. 
293,  sees.  375,  377,  513, 
523. 
of  Baltimore  v.  Root,  8  Md. 
95,  sees.  345,  454. 
Maxwell  v.  McGee,  12  Cush.  137,  sec. 

329. 

McAllister  v.  Brooks,  22  Me.  80;  38  Am. 

Dec.  282,  sees.  502,  503. 

V.  Penn.  Ins.  Co.,  28  Mo.  214. 

sec.  343. 

McCaffrey  v.  Moore,  18  Pick.  492,  sec. 

496. 
MeCarty  v.  Emlen,  2  Dall.  277;  2  Yeatea 

10,  sees.  490,  492. 
McCobb  V.  Tyler,  2  Cranch  C.  C.  199, 

sees.  338,  359,  400. 
MeCoid  v.  Beatty,  12  Iowa  299,  sec.  471. 
McCormac  v.  Hancock,  2  Pa.  St.  310, 

sec.  416. 
McCoy  V.  Williams,  6  111.  584,  sec.  513. 
McCreary  v.  Topper,  10  Pa.  St.  419,  sec. 

426. 
McCullough  V.  Carragan,  24  Hun  457, 
eec.  401. 


•46 


TABLE    OF   CASES. 


McDaniels  v.  Hughes,  3  East  367,  sec.  ' 

502. 
McDermott  v.  Donegan,  44  Mo.  85,  sec. 

499. 
McDonald  v.  Gillett,  69  Me.  271,  sees. 
349,  411. 
V.  Karney,   8  Kan.  20,   sec. 

492. 
V.  Simcox,  98  Pa.  St.  619,  sec. 
527. 
McDowell  V.  Crook,  10  La.  An.  31,  sees. 

375,  477,  513,  510. 
McDougal  V.  Board  of  Sup.  of  Hennepin 

Co.  4  Minn.  184,  sees.  422,  454.       . 
McElroy  v.  Raymond,  4  Cush.  317,  sec. 

412. 
McEvoy  V.  Lane,  9  Mo.  47,  sees.  364, 

380,  381,  396. 
McFadden  v.  O'Donnell,  18  CaL  160,  sec. 

501. 
McGee  v.  Eiddlesberger,  39  Mo.  395,  sec. 

468. 
McGlinchy  v.  "Winchell,  63  Me.  31,  sees. 

448,  453. 
McGuire  v.  Pitts,  42  Iowa  535,  sec.  437. 
Mcllvaine  v.  Lancaster,  42  Mo.  96,  sees. 

404,  416. 
McKean  v.  Turner,  45  N.  H.  203,  sees. 

447,  449,  453. 
McKee  v.  Anderson,  35  Ind.  17,  sec.  384. 

V.  Judd,  12  N.  Y.  622,  sec.  465. 
McKenzie  r.  Noble,  13  Eich  (S.  C.)  147, 

sees.  420,  424. 
McKeon  v.  McDermott,  22  Cal.  667,  sec. 

501. 
McKinney  v.  Alvis,  14  HI.  34,  sec.  475. 
McLaughlin  v.  Swan,  18  How.  217,  sec. 

428. 
McLellan  v.  Young,  54  Ga.  399;  21  Am. 

Rep.  276,  sees.  419,  422,  454. 
Mclilahon  v.  AUen,  22  How.  193,  sec. 

402. 
McMeekin  v.  Slate,   9  Ark.  553,  sees. 

418,  454. 
McMenomy  v.  Eerrers,  3  Johns.  72,  sec. 

482. 
McMillan  v.  Richards,  9  Cal.  418,  sec. 

460. 
McMinn  v.  Hall,  2  Tenn.  328,  sees.  452, 

473,  484,  518. 
ISIcNeill  V.  Roach,  49  ]\Ess.  436,  sec.  460. 
McPhail  r.  Hyatt,  29  Iowa  137,  sec.  507. 
McPherson  v.  Snowden,  19  Md.  197,  sec. 

424. 
McQueen  v.  ISIiddleton  Manuf.  Co.,  16 

Johns.  5,  sec.  342. 
McSherry  v.  Brooks,  46  Md.  118,  sec. 

466. 
Meacham  v.   McCorbitt,   2  Met.    352, 

sees.  407,  409,  529. 
^leadowcroft  v.  Agnew,  89  111.  469,  sees. 

380,  416. 
Mechanics  Bank  v.  Hodge,  3  Rob.  (La. ) 

373,  sees.  422,  454. 
]\Ieeker  v.  Sanders,  6  Iowa  61,  sec.  380. 
Memphis  v.  Laski,  9  Heisk.  511;  24  Am. 

Rep.  327,  sec.  422. 
Menkin  v.  Gumbel,  57  Miss.  756,  sees. 

371,  402. 
Meriam  v.  Rundlett,  13  Pick.  511,  sees. 

458,  502. 


Merrick  v.  Phillips,  58  Mo.  436,  sec.  463. 
Merwin  v.  Chicago,  45  111.  133,  sees.  345, 

419,  454. 

Metcalf  V.  Steele,  42  Miss.  511,  sec.  327. 

Michigan  etc.  R.  Co.  v.  Chicago  etc.  R. 

Co.,  1  111.  App.  399,  sees.  375,  477, 513, 

516. 

Middleton  Paper  Co.  v.  Rock  R.  Paper 

Co.,  19  Fed.  Rep.  252,  sec.  332. 

Miller  v.  Hooe,  2  Cranch  C.  C.  622,  sec. 

344. 

V.  IMcLain,  10  Yerg.  245,  sec.  504. 

V.  Richardson,  1  Mo.  310,  sec.  491. 

Millison  V.  Eisk,  43  111.  112,  sees.  404, 

421,  422. 
Mims  V.  Parker,  1  Ala.  421,  sees.  452, 473. 
V.  West,  38  Ga.  18,  sees.  458,  460, 
463. 
Minard  v.  Lawler,  26  lU.  301,  sec.  497. 
Minchen  v.  Moore,  11  Mass.  90,  sec.  368. 
Mineral  Point  R.  Co.  v.  Barron,  83  111. 
365,  sees.  373, 
395. 
V.  Keep,  22  lU.  9, 
sec.  342. 
Mines  v.  Pyle,  4  Houst.  646,  sec.  473. 
Mitchells.  Byrne,  6  Rich.   (S.  C.)  171, 
sees.  330,  414,  442. 
V.  Milhooan,  11  Kan.  617,  sec. 
409. 
MobQe  etc.  R.  Co.  v.  Whitney,  39  AJa. 

468,  sec.  512. 
Mobley  V.  Loubat,  7  How.   (Miss.)  318, 

sec.  496. 
Moduel  r.  Mousseaux,  29  L^.  An.  228, 

sec.  328,  449. 
Montague  v.  Myers,  11  Heisk.  539,  sec. 

354. 
Montidonico  v.  Page,  10  Heisk.  (Tenn. ) 

443,  sec.  342. 
Mooar  v.  Walker,  58  Iowa  164,  sec.  408. 
Moody  V.  Alter,  12  Heisk.  (Tenn.)  142, 

sees.  357,  361,  386. 

Moore  v.  Greene,  4  Humph.  299,  sees. 

380,  458,  460. 

V.  Holt,  10  Gratt.  284,  sec.  338. 

V.  Kidder,  55  IST.  H.  488,  see.  334. 

Moor    V.  Lowrey,  25  Iowa  336,  sec.  531. 

V.  Mayor      of     Chattanooga,    8 

Heisk.  850,  sees.  419,  454. 
V.   McCoun,  64  Ga.  017,  sec.  3P5. 
V.  Moore,  12  Phila.  173,  sees.  523, 

528. 
V.  Pillow,  3  Humph.  448,  sec.  407. 
V.  Spackman,  12  Serg.  &  R.  287, 

sees.  402,  503. 
V.  Stainton,  22    Ala.    831,    sees. 

332,  426. 
V.  Towle,  38  Me.  133,  sec.  367. 
More  V.  Massini,  32  Cal.  50,  sec.  465. 
Morehead  v.  Gilmore,  77  Pa.  St.  118;  18 

Am.  Rep.  435,  sec.  463. 
JMorey  v.  Sheltus,  47  Vt.  342,  sec.  447. 
Morgan  v.  2se\-i\le,  74  Pa.  St.  52,  sees. 
329,  344,  395,  503. 
V.  Peet,  8  Mart.  395,  sec.  400. 
Morgner  v.  Bigelow,  3  ^Mo.   App.  592, 

sec.  407. 
ISIorin  v.  Bailey,  55  !Miss.  570,  sec.  354. 
Morrell  v.   Brown,   15  Pick.   173,  sec. 
407. 


TABLE   OF   CASES. 


747 


Morrill  v.    Eaymond,  28  Kan.    415;  42 

Ain.  Eep.  ICZ,  sec.  428. 
Morris  v.  I'enuiman,  14  Gray  220,  sees. 
347,  404,  421. 
V.  U.  P.   R.  li.  Co.,  56 Iowa  135, 
sees.  4S3,  484,  518,  523. 
Morrison  v.  New  Bedford  Inst.,  7  Gray 

267,  sec.  505. 
Morse  v.  Holt,  22  Me.  180,  sees.  411, 
431. 
V.  Marshall,  22  Iowa  290,    sec. 

523. 
V.  Towns,  45  N.  H.  185,  sec.  419. 
Mortland  v.  Little,  137  Mass.  3S9,  sees. 

390,  400, 
Morton  V.  Webb,  7  Vt.  123,  sec.  501. 
Moser  v.    Mayberry,  7  Watts  12,  sec. 

519. 
Moses  V.  McMullen,  4  Cold.  242,  sees. 

377,  380,  523. 
Mowry  v.  Crocker,  6  Wis.  326,  sec.  480. 
V.  Davenport,   6  Lea  80,    sees. 
473,  513. 
Mover  V.   Lobengier,  4  Watts  390,  sec. 

507. 
Mueth  V.  Sehardin,  4  Mo.  App.  403,  sec. 

348 
Muir'f.  Schenck,  3  Hill  (X.  Y.)  228;  38 

Am.  Dec.  G33,  sec.  472. 
MulhaE  V.   Quinn,    1   Gray   105,    sec. 

470. 
Mullen  V.  IMaguire,  10  Phila.   435,  sec. 

389. 
Murdock  v.  Daniel,  58  Miss.  411,  sec. 

607. 
Murray  v.  Lardner,  2  Wall.  110,  sees. 
4G3,  467. 
V.  Lylbum,  2  Johns.   Ch.  441, 
sees.  458,  463,  471. 
MurreU  v.  Johnson,  3  Hill  (S.   C.)  12, 

sees.  404,  420. 
Myatt  V.  Lockart,  9  Ala.  91,  sec.  438. 
Myer  v.  Liverpool  etc.  Ins.  Co.,  40  Md. 

595,  sees.  340,  428. 
Myers  V.  Baltzell,  37  Pa.  St.  491,  sec. 
499. 
V.  Beeman,  9  Ired.  116,  sees.  458, 

460. 
V.  Smith,   29  OUo  St.  120,   sec. 

490. 
V.  Urich,  1  Binney  25,  sec.  507. 


N. 

Nash  V.  Brophey,  13  Met.  476,  sec.  510. 
Nathan  v.  Giles,  5  Taunt.  558,  sees.  500, 

516. 
National  Bank  v.  Chicago  etc.  R.  Co., 
45  Wis.    172,    sec. 
520. 
V.  King,   Pa.   St.    202, 

see.  416. 
V.  Lake  Shore  etc.  R. 
Co.,   21    Ohio    St. 
221,  sec.  408. 
V.  Slaley,   9  Mo.  App. 

146,  sec.  439. 
V.  Texas,  20  Wall.  72, 
sec.  466. 


National  Bank  of  Commerce  v.  Hunt- 
ingdon, 129  Mass. 
444,  sec.  343. 
Near  v.  ]Mitehell,  23  Mich.  382,  sec.  500. 
Neilson  v.  Scott,  Rice's  S.   C.  Dig.  80, 

sees.  368,  383. 
Nelson  V.  Conner, 6  Rob.  (La.)  339,  sec. 

424. 
N.  E.  M.  I.  Co.  V.  Chandler,  16  Mass. 

275,  sec.  428. 
Nesbitt  V.   Campbell,  5  Neb.   429,   sec. 
513. 
V.   Ware,  30  Ala.  68,  sees.  447, 
448. 
:N"esmith  v.  Di-um,  8  Watts  &  S.  9;  42 

xVm.  Dec.  260,  sees.  437,  482. 
Netler  v.  Chicago  B'd  of  Trade,   12  111. 

App.  607,  sec.  335. 
Neuer  r.  OTallon,  18  Mo.  277;  59  An. 

Dec.  213,  sees.  422,  429,  438. 
Newburg  IPetroleum  Co.   v.   Weare,  27 

Ohio  St.  343,  sec.  343. 
Newby  V.  Hill,  2  Met.  (Ky.)  530,  sec.  469. 
New  Enor.  Screw  Co.  v.  Bliven,  3  Blatch- 

C.  C.  240,  sec.  500. 
New  Hampshire  etc.   v.  Piatt,  5  N.  H. 

193,  sec.  407. 
New  Haven  v.  Fowler,  28  Conn.  103,  sees. 

347,  421. 
New  Orleans  etc.  R.  Co.  v.  Long,  50  Ala. 
498,  sees.  510, 512. 
V.  Wallace,  50  Miss. 
214,secs.342,34,3. 
Newell r.  Adams,  ID.  Chip.  346,  sec.  466. 
V.  Blair,  7  JNIich.  103,  see.  437. 
V.  Terris,  16  Vt.  135,  sec.  529. 
Newlin  v.  Scott,  26  Pa.  St.  102,  sec.  530. 
Newman V.  Manning,  79Tnd.  218,  see.  371. 
Nichols  V.  Eaton,  91  U.  S.  716,  see.  428. 
V.   Sehofield,  2  R.  I.  123,  sees. 
484,  518. 
Nickerson  v.  Chase,  122  Llass.  296,  sees. 

411,  426,  514. 
Nickell  V.  Handly,  10  Gratt.  336,  sec.  428. 
Noble  V.  Merrill,  48  Me.  140,  see.  502. 
V.  Smith,  6  R.  I.  446,  sec. '480. 
f.  Thompson  Oil  Co.,  69  Pa.  St. 
409,  sec.  503;  79  Pa.  St.  3.54; 
21  Am.  Rep.  66,    sees.    354, 
371,  399,  402,  437,  471,  498, 
503,  504. 
Nolan  V.  Crook,  5  Humph.  312,  sees.  441, 

442. 
Norcross  v.  Benton,  38  Pa.  St.  217,  sees. 

514,  519. 
Norris  v.  Burgoyne,  4  Cal.  409,  see.  483. 
V.  Hall,  l8Me.  332,  sees.  502,  531. 
V.  E.  M.  E.  Ins.  Co.,  25  N.  H.  22, 
see.  531. 
North  V.  Turner,  9  S.  &  R.  244,  sec.  465. 
Star  etc.  Co.  v.  Ladd,  20  N.  W. 

Rep.  334,  sees.  440,  453. 
Western   Ins.    Co.    v.   Atkins,   3 
Bush.  328,  sec.  453. 
Northam  v.  Cartwright,  10  R.  1. 19,  sees. 

377,  390,  472. 
Northern  Cent.  R.  Co.  v.  Rider,  45  Md. 

24,  sees.  330,  360,  361,  363,  DCS. 
Norton  t'.  Piseataqua  Ins.  Co.,  Ill  Mass. 

532,  see.  465. 
I  V.  Sode,  75  Me.  385,  sec.  419. 


•48 


TABLE    OF   CASES. 


Norvell  r.  Porter,  '02  Mo.  309,  sec.  363. 
Koyes  v.  Brown,  33  Vt.  431,  sec.  409. 

V.  Foster,  48  Mich.  273,  sees.  382, 
400. 
Nugent  V.  Opdyke,  9  Rob.  (La. )  453,  sees. 

4V1,  481. 
Nutter  V.  Framin^ham  E,.  Co.,  132  Mass. 

427,  sees.  513,  514,  516. 
Nye  V.  Liscombe,  21  Pick.  263,  sees.  344, 

413. 


O. 


O'Brien  v.  Collins,  124  Mass.  98,  sees.  375, 
513. 
V.  Liddell,  10  Smedes  &  M.  371, 
S6C.  497. 
O'Callagban  v.  Thoinond,  3  Taunt.  -82, 

sec.  4u4. 
O'Connor  v.  Cavan,  12G  Mass.  117,   sec. 

371. 
O'Keefe  v.  Dunn,  6  Taunt.  305,  sec.  467. 
Oakey  r.  Miss.  etc.  P.   Co.,  13  La,  567, 

sec.  380. 
Oberteufier  v.  Harwood,  2  McCreary  C. 

C.  415,  sees.  370,  376,  378. 
Ochiltree  v.  M.  I.  etc  P.  Co.,  49  Iowa 

150,  .sec.  352. 
Odell  V.  Cray,  15  Mo.  342;  55  Am.  Dec. 

147,  sec.  464. 
Oliio  etc.  P.  Co.  V.  Alvey,  43  Ind.  180, 

sec.  505. 
Oldham  v.  Ledbetter,  1  How.  (]VIiss.)43; 

26  Am.  Dec.  <590,  sees.  399, 403,  472. 
Olin  V.  Figeroux,  1  McMullen  203,  sec. 

504. 
Oliver  v.  Atkinson,  11  Port.  546,  sec.  523. 
V.  Chicago  etc.  P.  Co.,  17  lU.  587, 

sec.  360. 
V.  Smith,  5  Mass.  183,  sec.  423. 
Openheim  ^■.  Pittsb.  etc.  IL  Co.,  85  Ind. 

471,  sec.  505. 
Opdyke,  Ex  parte,  G2  Ala.  C8,  sec.  374. 
Ordway  v.  Pemiugton,  12  P.  I.  319;   34 

Am.  Pep.  046,  sec.  356. 
Ormond  v.  Moye,  11  Ired.  -564,  sec.  460. 
Ormsby  v.  Anson,  21  Me.  23,  sec.  378. 
V.  Davis,  5  P.  L  442,  sees.  377, 

523. 
V.  Vt.  Copper  Co.,  56  N.  Y.  623, 
sec.  343. 
Orton  V.  Noonan,  27  Wis.  572,  sec.  389. 
Osborne  v.  Schutt,  67  Mo.  712,  sees.  373, 

409. 
Otis  V.  Ford,  54  Me.  104,  sec.  450. 
Ottumwax'.  Water  Power  Co.,  59  Iowa 

283,  sec.  410. 
Ouimet  v.  Sirois,  124  Mass.  162,  sec.  371. 
Owens  V.  Estees,  5  JNIass.  330,  sec.  444. 


Pace  V.  Smith,  57  Tex.  555,  sec.  347. 
Packwood  v.  Gridley,  39  111.  388,  sec.  463. 
Padden  v.  Moore,  58  Iowa  703,  sec.  359. 
Page  V.  Crosby,  24  Pick.  211,  sec.  437. 
V.  Thompson,  43  N.  H.  373,  sec. 
47L 
Park  V.  Matthews,  36  Pa.  St.  28;  2  Grant 
136,  sec.  428. 


Parker  v.  Danforth,  16  Mass.  299,  sees. 
353,  359. 
V.  Donnellj^  4  W.  Va.  648,  sees. 

404,  426,  455. 
V.  Farr,  2  Browne  (Pa. )  331,  sec. 

333. 
v.  Guillow,  ION.  H.  103,  sec.  489. 
V.  Kinsman,  8  Mass.  436,  sec.  3.38. 
V.  Page,  38  Cal.  522,  sees.  377, 523. 
V.  Parker,  2  Hill's  Ch.  (S.  C.)  35, 

sees.  333,  510. 
V.  Syracuse,  31  N.  Y.  376,  sec. 

482. 
V.  Wri^'ht,  66  Me.  392,  sees.  351, 
490. 
Parks  V.  Cushman,  9  Vt.  320,  sees.  416, 

426. 
Parmenter  v.  Childs,   12  Iowa  22,  sees. 

522, 525. 
Parmer  v.  Ballard,  3  Stewart  326,  sees. 

3'J9,  505. 
Parsons  v.  McGavock,  2  Tenn.  Ch.  581, 
sees.  419,  454. 
v.  Paine,  |26  Ark.  124,  sec.  395. 
V.  Poot,  41  Conn.  101,  sec.  518. 
Parton  v.  Griffin,  72  N.  C.  3o2,  sec.  469. 
Patten  v.  Wilson,  34  Pa.   St.  299,  sees. 

402, 465.      ■ 
Patterson  v.  Buckminster,  14  Mass.  144, 
sec.  389. 
V.  Harland,  12  Ark.  158,  sec. 
440. 
Fattier  etc.  Manuf.  Co.  v.  Taylor,  3  Mc- 

Ai'thur  4,  sec.  418. 
Pattis  v.  Spaulding,  21  Vt.  €6,  sec.  353. 
Patton  V.  Gates,  G7  111.   164,  sees.   439, 
479. 
V.  Smith,  7  Ired.  438,  sec.  447. 
Paul  V.  Johnson,  9  Phila.  32,  sec.  510. 
V.  Paul,  ION.  H.  117,  sees.  328,  447. 
V.  Peed,  52  N.  H.  136,  sec.  447. 
V.  Witman,  3  Watts  &,  S.  409,  sec. 
402. 
Pawley  v.  Gaines,  1  Overton  (Tenn.)  208, 

sees.  347,  421. 
Paxson  V.  Sanderson,  2  Phila.  303,  sec. 

416. 
Pavdras  v.    Delamere,   13  La.   98,  sec. 

465. 
Payne  v.  Ballard,  723  Miss.  88,  sec.  334. 
V.   Mobile,  4    Ala.   333;  37  Am. 
Dec.  744,  sec.  470. 
Peace  v.  Jones,  3  Murphy  256,  sees.  484, 

518. 
Peacock  v.  Pembrooke,  4  Md.  280,  sec 

416. 
Pearce  v.  Shorter,  50  Ala.  318,  sec.  407. 
Pearsall  v.  Dwight,  2  Mass.  84;  3  Am. 

Dec.  35,  sec.  464. 
Pease  v.  Underwriters  Union,  1  111.  App. 

287,  sees.  342,  380. 
Peaslee  v.  Doane,  39  N.  H.  494,  sec.  377. 
Peck  V.  Barnum,  24  Vt.   75,  sees.  344, 
353,  359,  413,  486. 
V.  Stratton,    118  Mass.   406,  sec. 

526. 
V.  Walton,  23  Vt.  33,  sec.  460. 
Peebles  V.  Meeds,  96  Pa.  St.  150,  sec.  328. 
Peet  V.  McDaniel,  27  La.  An.  455,  sec. 

439. 
Peiffer  v.  Graves,  26  N.  H.  258,  sec.  SSL 


I 


TABLE   OF   CASES. 


749 


Pellman  v.  Hart,  Pa.  St.  2G3,  sees.  402, 

47-2. 
Pendleton  v.  Perkins,  49  Mo.  565,  sees. 

345,  419. 
Penn.  v.  Pelan,  52  Iowa  535,  sec.  3G5. 
Pennebaker  v.  Tomlinson,  1  Tenn.  Cb. 

Ill,  sees.  34G,  418. 
Pennellir.  Grubb,  13  Pa.  St.  522,  sees.  517, 

518,  520. 
Penniman  v.  Smith,  5  Lea  130,  sec.  497. 
Ptnnoyerr.  Neff,  95 U.  «.  714,  seo.  313. 
Pennsylvania  li.  Co.  v.  Peoples,31  Ohio  St. 
537,  sec.  380. 
V.  Pennock,  1  P.  F. 
Smith  244,  sec.  402. 
People  V.  Cass  Co.  Judge,  39  Mich.  407, 
see.  387. 
V.  Jo'inson,  14  111.  342,  sec.  43S. 
V.  Tiotja  C  P.,  19  Wend.  73,  sec. 
4G9. 
Perine  v.  Georg-e,  5  Ala.  641,  sec.  523. 
Perkins  v.  Parker,  1  Mass.  117,  sec.  502. 
Perry  v.  Coates,  9  Mass.  537,  sec.  407. 

V.  Thornton,  7  R.  I.  15,  sees.  404, 

427. 
V.  WashWn,  20Cal.  318,  see.  513. 
Pert  V.  McDaniel,  27  La.  An.  455,  sea 
447. 

V.  Whitmore,  16  La.  An.  48,  sec.  529. 
Peters ?•.  Lea-ne,  13Md.  58,  sacs.  522,527. 
Peterson  i:  Sinclair,  83  Pa.  St.  250,  sees. 

484,  518. 
Pettes  V.  Spaulding,  21  Vt.  66,  sees.  359, 

486,  487. 
Pettingill  v.  Androscoggin  R.  Co.,  51  Me. 

370,  sees.  349,  412,  429,  430. 
Phelan  v.  Gaubin,  5  Colo.  14,  sec.  404. 
V.  Moss,  67  Pa.  St.  59;  5  Am. 
Rep.  402,  .sec.  46.3. 
Phelps  V.  Atchinson  etc.  R.  Co.,  28 Kan. 
165,  sec.  410. 
V.  Boughton,  27  La.  An.  305,  sees. 
325,  333,  3G1. 
Phillips  V.  Gorman,  43  Iowa  101,  see. 

526. 
Pickering  v.  Wendell,  20  N.  H.  222,  see. 

416. 
Pickler  v.  Rainey,  4  Heisk.  335,  sec.  3G5. 
Piquet  v.  Swan,  4  Mason  443,  sees.  414, 

425,  513. 
Pierce  v.  Carleton,  12  111.  358;  54  Am. 
Dec.  405,  sees.  421,  420,  505, 
523. 
Pierce  v.  Chicago  etc.  Co.,  36  Wis.  283, 

sec.  401. 
Pierson  v.  McCahill,   21  Cal.  123,  sec. 
501. 
V.   McCormick,  1  Clark  (Pa.) 
201,  sec.  454. 
Pioneer  Printing  Co.  v.  Sanborn,  3  Minn. 

413,  see.  523. 
Piper  V.  Piper,  2  N.  H.  439,  sees.  341, 

447. 
Pitts  V.  Mower,  18  Me.  361;  36  Am.  Dec. 

727,  sec.  471. 
Planters  Bank  v.  Andrews,  8  Port.  404, 
sec.  342. 
V.  Leavens,  4  Ala.  753, 
sees.  342,  408. 
Platen  v.  Ryck,  50  Ga.  245,  sec.  528. 
Piatt  V.  Brown,  16  Pick.  553,  sec.  327. 


Plimpton  V.  Bigelo-w,  26  Hun  302;    12 
Abb.  C.  Cas.   202;  63  How.   Pr.  484j 
sees.  391,  408. 
Plummer  v.  Rundlett,  42  Me.  365,  sees. 

377,  380. 
Poe  V.  St.   Mary's  College,  4  Gill  499, 

see.  428. 
Pollard  V.  Mobile  Savings  Bank,  60  Miss. 
946,  sec.  505. 
V.  Ross,  5  Mas-s.   319,  sees.  347, 

421. 
V.   Somerset  Mut.   etc.    Co.,  42 
Me.  221,  sees.  354,  471. 
Poor  V.  Colbum,  57  Pa.  St.  415,  sec.  450. 
Pope  V.  Hibernia  Ins.  Co.,  24  Ohio  St. 

481,  sec.  399. 
PopesEx'rs  v.  EUiott,   8  B.  Mon.  56, 

sec.  428. 
Porter  v.  Bullard,  26  Me.  448,  sees.  469, 
482. 
V.  Giles,  129  Mass.  589,  sec.  356. 
V.  Stevens,  9  Cush.  530,  see.  397. 
Post  V.  liove,  19  ria.  634,  sec.  404. 
Potter  V.  Cain,  117  Mass.  238,  sees.  473, 

483. 
Powell  V.  Brown,  3  Johns.  100,  sec.  453. 
V.   Sammons,  31  Ala.  552,  sees. 
447,  513. 
Powers  V.  Neeson,  19  Mo.  190,  see.  406. 
Prentiss  v.  Bliss,  4  Vt.  513;  24  Am.  Dee. 
631;  sees.  330,  347,  404,  419, 
421. 
V.  Danaher,  20  Wis.   311,  sees. 
381,  382,  396. 
Prescott  V.  Hull,  17  Johns.   284,  sees. 

471,  504. 
Presnall  v.  Mabry,  3  Port.  105,  sec.  455. 
Pressby  v.   McDonald,   1  Rich.  (S.  C.) 

127,  sec.  416. 
Price  V.  Bradford,  4  La.   35,   sees.  439, 
478. 
V.  Brady,  21  Tex.  614,  sec.  407. 
V.  Higgins,  1  Litt.  273,  sees.  525, 

532. 
V.  Mazouge,  31  Ala.  701,  sees.  381, 

396. 
V.  IMott,  .52  Pa.  St.  315,  sec.  395. 
Pringle  v.  Phillips,  5  Sandf.  157,  see.  463. 
Probate  Court  v.  Niles,  32  Vt.  775,  sec 

416. 
Proseus  v.  Mason,  12  La.  16,  sec.  388. 
Prout  V.  Grout,  72  111.  45G,  sec.  530.  _ 
Providence  Co.  Bank  v.  Benson,  24  Pick. 

204,  sees.  437,  465. 
Puffer  V.  Graves,  26  K  H.  258,  sees.  508, 

528. 
Pulliam  V.  Aler,  15  Gratt.  54,  sec.  510. 
Pundt  V.  Clary,  13  Neb.  406,  see.  327. 
Putney  v.  Famham,  27  Wis.  187,  sec. 
469. 

Q. 

Quarles  v.  Porter,  12  Mo.  76,  sees.  421, 

460,  461,  463. 
Quigg  V.  Kittridge,  18  N.  H.  137,  sees. 

426,  531. 

R. 

Rachereau  v.  Guydry,  24  La.  An.  294^ 
sec.  505. 


750 


TABLE    OF    CASES. 


Eaignel  v.  McConnell,  25  Pa.  St.  3G2, 

sec.  407. 
Railroad  v.  Todd,  11  Heisk.  (Tenn.)  549, 

sees.  3D7,  331. 
Eand  v.  White  Mt.  E.  R.,  40  N.  H.  79, 

sec.  447. 
Randall  v.   Way,   111  Mass.  506,  sees. 

410,  428,  43G. 
Randolph  v.  Heaslip,   11  Iowa  37,   see. 
530. 
V.  Little,   62  Ala.   396,   sees. 

395,  409. 
V.  RaUs,  18  111.  29,  sec  422. 
V.  Randolph,  34  Tex.  181,  sec 
520. 
Eankin  v.  Simonds,  27  111.  352,  sees.  364, 

375,  380,  481,  513. 
Ransom  v.  Hays,  39  Mo.  445,  sec.  447. 
Rasmussen  v.  McCabe,  46  Wis.  600,  sec 

401. 
Raventas  v.  Green,  57  Cal.  2.54,  sec.  351. 
Ray  V.  Bancus,  43  Barb.  310,  sees.  399, 
402. 
V.  Faulkner,  73  111.  469,  sec.  437. 
V.  Underwood,   3   Pick.    302,   sees. 
344,  413. 
Raymond  v.  Rockland  Co. ,  40  Conn.  401, 
sees.  300,  361. 
V.  Squire,  11  Johns.  47,    sees. 
354,  471. 
Raynes  v.  Lowell  etc.  Soc,  4  Cush.  343, 

sees.  416,  428. 
Reagan  v.  Pacific  R.  Co.,  21  Mo.  30,  sec 

397. 
Redd  V.  Burrus,  58  Ga.  574,  sec  438. 
Reddick  v.  Smith,  4  111.  451,  sees.  347, 

404,  421. 
Reid  V.  McLeod,  20  Ala.  576,  sees.  353, 

359. 
Reifsnyder  v.  Lee,  44  Iowa  101;  24  Am. 

Rep.  733,  sec.  421. 
Rennekerv.  Davis,  10  Rich.  Eq.  (S.  C.) 

289,  sec.  338. 
Reynolds  v.  McKinney,  4  Kan.  94,  sec. 

445. 
Rhine  v.  Danville  etc.  R.  Co.,  10  Phila. 

336,  sec.  378. 
Rhode  Island  Exeh.  Bank  v.  Hawkins, 

6  R.  I.  198,  sec.  527. 
Rice  V.  Stone,  1  Allen  666,  sec.  465. 
Rich  V.  Reed,  22  Me.  28,  sees.  377,  523. 

V.  Waters,  22  Pick.  563,  sec.  449. 
Richards  v.  Griggs,  16  Mo.  416;  51  Am. 
Dec  240,  sees.  426,  455, 
471. 
i).  Stevenson,  99  Mass.  311,  sees. 
367,  377. 
Richardson  ».  Gurney,    9  La.  285,  sec. 
457. 
V.  Hickman,    22  Ind.   244, 

sec.  504. 
V.  Lacey,   27  La.   An.    62, 

sec.  356. 
V.  White,  19  Ark.  241,  sees. 

386,  387. 
V.  Whitney,  18  Pick.   530, 
sec  44:7 
Riddle  V.  Etting,  32  Pa.  St.  412,  sec.  532. 
Ridge  V.  Hardeastle,  8  T.  R.  417,  sees. 
349,  431. 
V.  Ohnstead,  73  Mo.  578,  sec  371. 


Riley  v.  Hirst,  2  Pa.  St.  346,  sees.  349, 

431. 
Rindge  v.  Green,  52  Vt.  204,  sees.   386, 

392,  413. 
Ripley  «'.  Severance,6  Pick.  474,  17  Am. 

Dec.  397,  see.  434. 
Rippen  v,  Schoen,  92  lU.  229,  sec.  397. 
Rischert  v.  Kuntz,  9  Mo.  App.  283,  sec. 

395. 
Risley  v.  Smith,  64  N.  Y.  576,  sec.  482. 
Succession  of,  11  Rob.  (La.)  298, 
sees.  354,  471. 
iRiswick  V.   Lamon,    2  McArthur  172, 
I     sec.  428. 

'Rix  i:  Elliot,  1  N.  H.  184,  sees.  353,359, 
I     487. 

Roberts  v.    Austin,   26  Iowa  315,  sees. 
465,  482. 
V.  Barry,  42  ISIiss.  260,  sec.  327. 
V.  Drinkard,  3  Met.  (Ky.)  309, 
sec.  449. 
Robertson  v.  Beall,   10  Md.   125,   sees. 
421,  523. 
V.  Roberts,  1  A.  K.  Marsh 

247,  sec.  504. 
V.   Scales,   13  La.  An.   545, 
sec.  438. 
Robeson  v.  Carpenter,  7  Mart.  N.  S.  30, 

sees.  503,  508,  528. 
Robins  v.  Bacon,  3  Me.  346,  sees.  465, 

469,  475,  482. 
Robinson  v.  Hall,  3  Met.  301,  sees.  486, 
510. 
V.  Howard,  7  Cush.  257,  sees. 

347,  404,  421. 
V.  Mitchell,  1  Harr.  365,  sec. 

466. 
V.  Rapelye,  2  Stew.  86,   sec 

380. 
V.  Starr,  3  Stew.  90,  sec.  522. 
V.  Tevis,  38  Cal.  611,  sec  351. 
Roby  V.  Labuzan,  21  Ala.  60,  sec.  529. 
Roche  V.  Rhode  Island  Ins.  Co.,  2  HL 

App.  3G0,  sees.  382,  409,  494. 
Roekville  etc.  Turnp.  R.  v.  Maxwell,  2 

Cranch.  C.  C.  451,  sec.  408. 
Rodman  v.    Musselman,  12  Bush  354; 

23  Am.  Rep.  724,  sees.  419,  422. 
Eollo  V.  Andes  Ins.  Co.,  23  Gratt.  509; 
14  Am.  Rep.  147;  sees.  404,  418,  422, 
454. 
Roosa  V.  Crist,  17  111.  450,  see.  464. 
Roquest  v.  Steamer  B.  E.  Clark,  13  La. 

An.  210,  sec.  370. 
Rose  V.  Whaley,  14  La.  An.  374,  sec. 

366. 
Ross  V.  Austin,  4  Hen.  &  M.  502,  sec. 
531. 
V.  Clark,  1  DaU.  354,  sees.  330, 404, 

420. 
V.  McKinney,  2  Rawle  227,  sec.  451. 
V.  Pitts,  39  Ala.  606,  sec.  503. 
V.  Ross,  25  Ga.  297,  sees.  342,  404. 
Roth  V.  Hotard,  32  La.  An.  280,  sec 

404. 
Rounds  V.   Hamner,  57  Ala.  342,  sees, 

333,  356,  403. 
Row  V.  Dawson,  1  Ves.  331,  sec  482. 
Rowell  V.  Felker,  54  Vt.  526,  sec.  328. 
Rowlett  V.   Lane,  43   Texas   274,  sec 
327. 


TABLE    OF    CASES. 


751 


Roy  V.  Heard,  38  Miss.  544,  sees.  33G, 

3J1,  3()3. 
Rudd  V.  Paine,  2  Cranch  C.  C.   9,  sec. 

409. 
Euddick  V.  Smitb,  4  111.  451,  sec.  330. 
Euif  r.  ilud",  85  Pa.  St.  333,  sec.  398. 
Eundlett  ■('.  Jordan,  3  Me.  47,  sees.  328, 

353,  407,  447. 
Eushton  V.  Eowe,  G4  Pa.  St.  468,  sec.  531. 
Euss  V.  Clark,  1  Dall.  354,  sec.  347. 
Eussell  V.  Convers,  7  N.  H.  343,   sec. 
473. 
V.    Cling-an,   33  Miss.  535,    sec. 

449. 
V.  Hinton,  1  Mtzrphy  408,  sec. 

519. 
V.  Lewis,  15  Mass.  127,  sec.  428. 
V.  Ralph,  53  Wis.  328,  sec.  356. 
V.   Tunno,   11  Eich.    303,    sec. 
480. 
Rutter  V.  Boyd,  3  Abb.  N.  Cas.  6,  sees. 
307,  309. 


S. 


Sabin  v.  Cooper,  15  Gray  532,  sees.  359, 

486,  487. 
Saddler  v.  Trustees  etc.,  59  Miss.    572, 

sec.  3G3. 
Salim  V.  Cooper,  15  Gray  532,  sec.   449. 
Sailer  v.  Ins.  Co.,  62  Ala.  221,  sees.  402, 

435. 
Sampson  v.  Hyde,  16  N.  H.  492,  sees. 

375,  481,  513. 
Sanborn  v.  Little,  3  N".  H.  359,  sec.  465. 
Sandidge  v.    Graves,    1    Patten  Jr.   & 

Heath  101,  sec.  437. 
Sanford  v.  Bliss,  12  Pick.  116,  sec.  523. 
Sargeant  v.    Andrews,  3  Me.  199,  sec. 

502. 
Sargent  v.  Carr,  12  Me.  396,  sec.  440. 
V.  Wood,  51  Vt.  .597,  sec.  400. 
Savage's  Case,  1  Salk.  291,  sec.  502. 
Sawyer  v.  Thompson,  24  N.  H.  510.  sec. 
344. 
V.  Webb,  5  Iowa  315,  sees.  370, 
378,  390. 
Sajrward  v.  Drew,  6  Me.  263,  sees.  449, 

484,  518. 
Scales  V.  Swan,  9  Port.  (Ala. )  103,  sees. 

305,  377,  523. 
Schafer  v.   Vizena,   30  Minn.   387,  sec. 

397. 
Schatzel  v.  Bolton,   2  McCord  478;  13 

Am.  Dec.  748,  sec.  490. 
Schindler  v.  Smith,  18  La.  An.  476,  sees. 

333,  3G1,  505. 
Scbleuter  v.  Eaymond,  7  Neb.   28,   sec. 

410. 
Scholfield  V.  Bradlee,  8  La.  495,  sec.  331. 
School  Dist.  V.  Gage,  .39  Mich.   484;  33 

Am.  Eep.  421,  sec.  419. 
Schwab  V.  Gingerick,  13  111.   007,  sees. 

381,  396. 
Scofield  V.  Sanders,  25  Vt.  181,  see.  411. 
Scott  V.  Brigham,  27  Vt.  516,  sec.  409. 
V.  First  Nat'l  Bank,  71  lud.  319, 

sec.  407. 
V.  Hill,  3  Mo.  88;  22  Am.  Dec.  462, 

sec.  400. 
V.  Ray,  18  Pick.  360,  sees.  377,  523. 


Scripture  v.  Francestown  Soap  Stone  Co., 

50  N.  H.  571,  sec.  408. 
Seamon  v.  Bank,  4  W.  Va.  339,  sec.  517.  . 
Sebor  v.  Armsti'ong,  4  Mass.  20G,  sees. 

377,  523. 
Security  etc.  Ass'n  v.  Weems,  69  Ala. 

584,  sec.  392. 
Seise  V.  McCoy,  6  W.  &  S.  485,  sec.  445. 
Self  V.  Kirkland,  24  Ala.  275,  sees.  515, 

518. 
Selheimer  v.  Elder,  98  Pa.  St.  154,  sees. 

328,  447. 
Sells  V.  First  Nat'l  Bank,  55  Wis.  225, 

sec.  397. 
Selma  etc.  R.  Co.  v.  Tyson,  48  Ga.  351, 

sec.  343. 
Sessions  v.  Stevens,  1  Fla.  233,  sec.  502. 
Seward  v.  Heflin,  20  Vt.  144,  sec.  505. 
Seybel  v.  Nat'l  Bank,  54  N".  Y.  288;  13 

Am.  Eep.  583,  sec.  403. 
Seymour  v.  Kramer,  5  Iowa  285,  sees. 

327,  329. 
Sexton  r.  Amos,  39  Mich.  695,  sees.  371, 

390,  434. 
Shand  v.  Du  Boisson,  18  Eq.  Cas.  L.  R. 

283,  sec.  482. 
Shankland's  Appeal,  47  Pa.  St.  113,  sec. 

428. 
Sharp  V.  Clark,  2  Mass.  91,  sec.  347. 
Shattuck  V.  Smith,  IG  Vt.  132,  sec.  439. 
Shaughnessy  v.  Fogg,  15  La.  An.  330, 

sees.  370,  376. 
Shaw  V.  Bunker,  2  Met.  376,  sees.  367, 
370. 
V.  Beckett,  26  Vt.  482,  sec.  513. 
V.  Spencer,  100  Mass.  382;  1  Am. 
Eep.  115,  sec.  408. 
Shealy  v.  Toole,  53  Ga.  210,  sec.  501. 
Shearer  v.  Handy,  22  Pick.  417,  sees.  377, 

523. 
Sheedy  v.  Second  Nat'l  Bank,  62  Mo.  17, 

sees.  335,  351,  490. 
Sheets  v.  Culver,  14  La.  449,  452,  sec.  460. 
V.  Hobeusack,  20  Pa.  St.  412,  sec. 
529. 
Shehan  v.  Marston,  132  Mass.  161,  sec. 

354. 
Sheldon  v.  Hinton,  6  111.  App.  216,  sees. 
402  433,  435. 
V.  Eoot,'  16  Pick."  567;  28  Am. 

Dec.  266,  see.  407. 

V.  Simons,  Wright  724,  sec.  519. 

Shelter  v.  Thomas,  16  Ind.  223,  see.  466. 

Shephard  v.  Turner,  13  Allen  92,  sec.  419. 

Shewell  v.  Keen,  2  Whart.  332;  30  Am. 

Dec.  266,  sees.  404,  425,  455. 
Shiner  v.  Jones,  11  Wright  2G8,  sec.  402. 
Shinn  v.  Zimmerman,  23  N.  J.  L.  150; 

55  Am.  Dec.  260,  sec.  498. 
Shivers  v.  Wilson,  5  Harr.  &  J.  130;  9 

Am.  Dec.  497,  sees.  399,  405. 
Short  V.  City  of  N.  O.,  4  La.  An.  281,  sec. 
475. 
V.  Moore,  10  Vt.  446,  sees.  416,  426. 
Shuler  v.  Bryson,  65  N.  C.  201,  sec.  460. 
Shumway  v.  Stillman,  4  Cowen  292;  15 

Am.  Dec.  874,  sec.  402. 
Shurer  v.  Brainard,   29  Barb.  25,  sees. 

399,  402. 
Shuttlesworth  V.  Noyes,  8  Mass.  229,  sec. 
416. 


752 


TABLE   OF   CASES. 


Sickman  v.  Lapsley,  13  Serg.  &.  R.  224, 

sec.  532. 
Sievers  v.  "Woodburn  etc.  Co.,  43  Mich. 

275,  sees.  382,  400,  498. 
Silverwood  v.  Bellas,  8  Watts  420,  sec. 

416. 
Simo's    Estate,    Myrick's    Prob.    Rep. 

(Cal.)lOO,  sec.  404. 
Simirions  v.  Guyon,  57  Ala.  Ill,  sees.  371, 

402,  434,  435,  405,  472,  481. 
Simon  v.  Huot,  8  Hun  378,  sec.  458. 
Simpson  v.  Bibber,  59  Me.  190,  sec.  437. 
V.  Hall,  47  Conn.  418,  sec.  467. 
V.  Harry,  1  Dev.  &  Batt.  202, 

sees.  416,  433. 
V.  Tippin,  5  Stew.  &  P.  208,  sees. 
434,  435. 
Singers.  Townsend,  53 Wis.  126,  sec. 353. 
Sise  V.  Drew,  18  N.  H.  409,  see.  381. 
Skipper  v.  Foster,  29  Ala.  333,  sec.  497. 
Skowhe-ran  Bank  v.  Ferrar,  46  Me.  293, 

sees.  407,  414. 
Satter  r.  Tieruan,  0  La.   An.   567,  sees. 

522,  523. 
Small  V.  Browder,  11  B.  Mon.  212,  sees. 

354,  471. 
Smith  V.  Ainseow,  11  N"eb.  476,  sees.  371, 
402,  4.33,  481. 
V.  Baker,  10  Me.  458,  sees.  492, 495. 
Smith  V.  Boston  C.  &  M.  R.  R.,  33  N. 
H.  3-37,  sees.  342,  516. 
V.  BlatL-hford,  2Ind.  184,  sees.  460, 

4G4,  472,  501. 
V.  Bowes,  38  Md.  463,  sec.  334. 
V.  Brimer,  23  Miss.  .508,  sec.  523. 
V.  Cahoon,  37  ]Me.  281,  sees.   328, 

440,  447,  450,  490. 

V.  Chapman,  6  Port.  305,  sees.  452, 

473. 
V.  Clark,  9  Iowa  241,   sees.  437, 

441,  442,  516,  522,  525. 

V.  Davis,  1  Wis.  388;  60  Am.  Dee. 

390,  sees.  452,  473. 
V.  Dickson,  58  Iowa  444,  sees.  330, 

505. 
V.  Durbridge,  26  La.  An.  531,  see. 

492. 
V.  Eaton,  .36  Me.  307,  see.  413. 
V.  Foley,  0  Wall.  492,  sec.  467. 
V.  Heideeker,  39  Mo.    157,   sees. 

364,  381,  396. 
V.  Kennebec  etc.  R.  Co.,  45  Me. 

547,  sec.  407. 
V.  McCutchen,  38  Mo.   415,  see. 

399. 
V.  McMicken,  3  La.  An.  319,  sec. 

490. 
V.  Mulhern,  57  Miss.  591,  sec.  391. 
V.  Picket,  7  Ga.  104;  50  Am.  Dee. 

385,  sec.  44.5. 
v.  Stearns,  19  Pick.  20,  sees.  514, 

516,  518,  531.    ■ 
V.  Sterritt,  24  Mo.  230,  sees.  472, 

481. 
Smoot  V.  Eslava,  23  Ala.  659;   58  Am. 

Dee.  310,  sec.  504. 
V.  Hart,  33  Ala.  69,  sees.  419, 454. 
Somers  v.  Losey,  48  Mich.  294,  sec.  357. 
Somerset  M.  Co.  v.  Partridge,  25  N.  H. 

309,  sec.  531. 
Somerville  v.  Brown,  5  GiU  399,  sec.  460. 


!  South  Bend  Bank  v.  Gandy,  11  Neb.  431, 
sec.  428. 
Southern  Bank  of  Mo.  v.  McD  maid,  46 

Miss.  31,  sees.  333,  359,  505. 
Spalding  v.  Imley,  1  Root  551,  sees.  422, 

454. 
Speak  V.  Kinsey,  17  Tex.  301,  sees.   353, 

483. 
Spears  v.  Chapman,  43  Mich.  541,  sees. 

377,  523. 
Speed  V.  Brown,  19  B.   Mon.  108,  sees. 
345,  454. 
V.  Mav,  5  Harris  91;  5  Wall.   307, 
sec.  402. 
Speight  V.  Brock,  Freem.  389,  see.  458. 
Spencer  v.    Blaisdell,  4  N.    H.    198;  17 
Am.  Dec.  412,  sec.  407. 
V.  School  Dist.,  11 R.  I.  537,  see. 
419. 
Spicer  v.  Spieer,  23  Vt.  678,  see.  495. 
Spoonerv.  Rowland,  4  Allen  485,  sec.  510. 
Sprague  v.  Steam  Nav.  Co.,  52  Me.  592, 

sees.  348,  429. 
Spring  V.  Aver,  23  Vt.  516,  sec.  532. 
Sproule  V.  McXulty,  7  Mo.  62,  sec.  438. 
Spruill  V.  Trader,  5  Jones  39,  sees.  508, 

528. 
Stackpole  v.  Newman,   4  Mass.  85,  sec. 
_  308. 

Stadler  v.  Parmlee,  14  Iowa  175,  sec.  452. 
Stahl  r.  Webster,  11  111.  511,  sec.  532. 
Staniels  v.  Raymond,  4  Cush.   314,  sees. 

330,  409,  412,  414. 
Staples  V.  Staples,  4  Me.  532,  sees.  349, 

421,  431. 
State  V.  Brownlee,    2   Speers    579,  sec. 
4.38. 
V.  Crawford,  11  Kan.  32,  sec.  395. 
V.  Curran,  7  Eng.  322,  see.  422. 
V.  Eberley,  12  Neb.  616,  sec.  345. 
V.  Krebs,  6  Harr.  &  J.  31,  sec.  416. 
V.  Lawson,  7  Ark.  391,  sec.  407. 
V.  Norwood,  12  Md.  195,  sec.  395. 
Stebbins  v.  Fitch,  1  Stew.  180,  see.  399. 
Stedman  v.  Vickery,  42  Me.  132,  sees. 

334,  411,  440. 
Steel  V.  Smith,  7  Watts  &  S.  447,  see.  402. 
Steen  v.  'Norton,  45  Wis.  412,  sees.  399, 

401. 
Steers  v.  Morgan,  66  Ga.  552,  sec.  357. 
Stetson  V.  Cleneay,  14  Ind.  453,  sec.  460. 
Stevens  v.  Dillman,  86  111.  233,  see.  386. 
V.  Guathmey,  9  Mo.   636,   sec. 

531. 
V.  Pugh,  12  Iowa  430,  see.  465. 
V.  Stevens,   1  Ashm.   (Pa.)  190, 
sees.  354,  402,  439,  472. 
Stewart  v.  Stokes,  33  Ala.  494,  see.  334. 
V.  West,  1  Harr.  &  J.  536,  sees. 
483,  518. 
Stickley  v.  Little,  29  111.  315,  sees.  522, 

524. 
Stickney  v.  Batchelder,  18  N.  H.  40, 

sec.  412. 
Still  V.  Spear,  45  Pa.  St.  168,  see.  428. 
Stille  V.  Layton,  2  Harr.  149,  sec.  505. 
Stillman  v.   Isham,  11  Conn.   124,  sees. 

418,  419,  422,  454. 
Stimpson  v.  Maiden,  109  Mass.  313,  see. 

504. 
Stinson  v.  Caswell,  71  Me.  510,  sec.  402. 


TABLE   OF   CASES. 


St.  Louis  V.  Regenfuss,  28  Wis.  144,  sees. 
477,  516. 
V.  Wiggins  Ferry  Co.,  40  Mo. 
58,  sec.  343. 
St.  Louis  Perpet.  Ins.  Co.  v.  Cohen,  9 

Mo.  417,  sees.  331,  399. 
Stocton  V.  Hall,  Hard.  (Ky.)  160,  sees. 

354,  469,  472. 
Stone  V.  Dean,  SN.  H.  502,  sees.  407,  458, 
460,  489. 
V.  Elliot,  11  Ohio  St.  252,  sees.  458, 

463. 
V.  Hodges,  14  Pick.  84,  sec.  411. 
V.  Magi-uder,  10  Gill  &  J.  383;  32 
Am.  Dec.  177,  sec.  405. 
Storm  V.  Adams,  56  Wis.  137,  sec.  347. 
Stratton  v.  Ham,  8  Ind.  84,  sees.  404, 

425,  455. 
Strauss  v.  Railroad,  7  W.  Va.  368,  sec. 

449. 
Strong  V.  HoUon,  39  Mich.  411,  sees.  389, 
392. 
V.  Mitchell,  19  Vt.  644,  sees.  477, 

518. 
V.  Smith,  1  Met.  476,  sec.  416. 
Strong's  Ex'rs  v.  Bass,  35  Pa.  St.  333, 

sees.  499,  513.- 
Stuart  V.  West,  1  Harr.  &  J.  536,  sees. 

460,  484. 
Stubblefield  v.  Haggerty,  1  Ala.  38,  sec. 

472. 
Sturgesv.  Kendall,  2  La.  An.  565,  sec.  522. 
Stui-tevant  v.  Robinson,  18  Pick.  175, 

sees.  390,  474,  511. 
SuUivan  v.  Langlev,  128  Mass.  23.5,  see. 

358;  124  Mass.  264,  sees.  396,  439. 
SwaU  V.  Clarke,  51  Cal.  227,  sec.  463. 
Swamscot  Machine  Co.  v.  Partridge,  25 

N".  H.  369,  sec.  518. 
Swann  v.  Summers,  19  W.  Va.  15,  sec.  335. 
Sweeney  v.  Allen,  1  Pa.  St.  380,  sees.  492, 

497. 
Sweet  V.  Brown,  5  Pick.  178,  sees.  337, 
338,  415,  441. 
V.  Read,  12  R.  L  121,  sees.  380, 388. 
Swett  V.  Ordway,  23  Pick.  266,  sees.  475, 

477,  516. 
Swift  V.  Tyson,  16  Peters  1,  sec.  463. 
Swisher  v.  Fitch,  1  Smedes  &  M.  541, 
sec.  474. 


T. 


Taberv.  Nye,  12  Pick.  105,  sec.  449. 
Tabor  v.  Van  Vranken,  39  Mich.   793, 

sees.  371,  436,  465,  472,  481. 
Taft  V.  MiUs,  5  R.  I.  593,  see.  343. 
Talbot  V.  Harding,  10  Mo.  350,  sees.  338, 

359,  400. 
Tamm  v.   Williams,   2  Chitty,   438;   3 

Doug.  281,  sees.  344,  359. 
Tarns  V.  BuUitt,  35  Pa.  St.  308,  sees.  503, 

508,  525. 
Tapp  V.  Green,  22  La.  An.  42,  sec.  383. 
Tarbell's  Case,l  Saund.  67,  sees.  349,  431. 
Tate  V.  Morehead,  05  K  C.  681,  sees. 

33.3,  426. 
Tatlock  V.  Harris,  3  T.  R.  174,  sec.  475. 
Taylor  v.  Burlington  etc.  R.  Co.  5  Iowa 
114,  sees.  342,  473. 
n  Attachment— 23. 


Taylor  v.  Gardner,  2  Wash.  C.  C,  488, 
sec.  518. 
V.  Gillian,  23  Tex.  508,  sees.  407, 

424. 
V.  Lynch,  5  Gray  49,  sec.  470. 
V.   Phelps,    1  Harr.  &   Gill  492, 

sec.  503. 
V.  Sherman,  12  Mass.  441,  sees, 
349,  431. 
Tazewell   v.    Barrett,   4  Hen.    &     M. 

259,  sec.  531. 
Templeman  v.  Fauntleroy,  3  Rand.  434, 

sec.  531. 
Terry  v.   Lindsay,  3  Stew.   &  P.  317, 
sees.  426,  455,  486,  523. 
V.  Sisson,  125  Mass.  560,  sec.  436. 
Texas  v.  Hardenburg,  10  Wall.  68,  see. 

467. 
Thayer  v.   Partridge,  47  Vt.  423,  sees. 
513,  519. 
V.  Pratt,  47  N.  H.  470,  sees.  447, 

496. 
V.  Southwiek,  8  Gray  229,  see. 

447. 
V.  Tyler,  5  Allen  94,  sees.  347, 
404,  425. 
Thomas  v.  Fuller,  26  La.  An.  625,  sec. 
383. 
V.  Goodwin,  12  Mass.  140,  sec. 

434. 
V.  Hopper,  5  Ala.  442,  sees.  375, 

514. 
V.  Kinsey,  8  Ga.  421,  sec.  467. 
V.   Lusk,   13  La.   An.   277,  sec. 

490. 
V.  Price,  30  Md.  483,  sec.  366. 
V.  Wooldridge,  2  Woods  C.  C. 
667,  sec.  498. 
Thompson  v.  Allen,  4  Stew.  &  P.  184, 
sees.  399,  530,  531. 
V.  Allison,  28  La.  An.  733, 

sec.  513. 
V.  Brown,  17  Pick.  462,  sees. 

330,  347,  420,  421. 
V.   Fischesser,  45  Ga.    369, 

sec.  523. 
V.   Lewis,   34  Me.  167,   sec. 

490. 
V.  Pennell,  67  Me.  159,  sec. 

410. 
V.    Shelby,   3  Smedes  &  M. 

296,  sees.  460,  466. 
V.  Stewart,  3  Conn.   171;  8 
Am.  Dec.  168,  sees.  381, 
414,  428. 
V.   Tavlor,  13  Me.  420,  sec. 

489. 
V.  W^allace,  3  Ala.  132,  sec. 
532. 
Thome  v.  Matthews,  5  Cush.  544,  sec. 
510. 
V.   Woodruff,   5  Ark.  55,   sees. 
353,  404,  426. 
Thomdike  v.  De  Wolf,  6  Pick.  120,  sees. 

328,  450,  491,  492,  495,  496. 
Thorp  V.   Preston,   42  Mich.  511,  sec. 

449. 
Thrasher  v.  Buckingham,   40  Miss.  67, 

see.  492. 
Tillinghast  v.  Johnson,  5  Ala.  514,  secs^ 
425,  426. 


'54 


TABLE   OF   CASES. 


Timmons  v.  Jobnson,  15  Iowa  231,  sec. 

532. 
Tindell  V.  Wall,  Busbee  (L.)  3,  sec.  3.38. 
Tingley  v.  Bateman,  10  Mass.  343,  sees. 
344,  413. 
V.   Dolby,    13  Neb.    371,    sec. 
397. 
Tirrell  v.  Canada,  25  Tex.  455,  sec.  407. 
Toledo  etc.  E.  Co.  v.  McNulty,  34  Ind. 

531,  sec.  510. 
Tome  V.  Dubois,  6  Wall.  548,  sec.  46.5. 
Town  V.  Griffith,  17  N.  H.  165,  sec.  416. 
Towne  v.  Leach,  32  Vt.  747,  sec.  490. 
Townsenc^  v.  Atwater,    5  Day  298,  sec. 

453. 

Tracy  v.  Hornbuckle,  8  Bush.  336,  sees. 

418,  422,  454. 

V.   McGarty,  12  R.   I.  168,   sees. 

371,  436,  437,  465,  472,  481. 

Travis  v.  Tartt,  8  Ala.  574,  sees.   353, 

486. 
TreadweU  v.  Brown,  41  K  H.  12;  43  IST. 

H.  290,  sees.  334,  351,  490. 
Triebel  v.  Colhwcu,  64  111.  376,  sees.  345, 

422,  426. 
Trieber  v.  Commercial  Bank    etc.,    31 

Ark.  128,  sec.  463. 
Trimbey  v.  Vigmer,  1  Bing.  N.  C.  159, 

sec.  464. 
Trombley  v.  Clark,  13  Vt.  118,  sec.  496. 
Troyer  v.  Schweiser,  15  Minn.  241,  sec. 

507. 
Truitt  V.   Griffin,   61  lU.   26,  sees.  380, 

428. 
Tryon  v.   Merrill,   116  Mass.  299,  sec. 

390. 
Tubb  V.  Madding,  Minor  129,  sec.  505. 
Tucker  v.  Atkinson,    1  Humph.  (Term. ) 
300;  34  Am.  Dec.  650,  sees. 
330,  347,  421. 
V.  Butts,  6  Ga.  580,  sec.  349. 
V.  Clisby,  12  Pick.  22,  sec.  449. 
V.  Marsteller,    1   Cranch  C.    C. 
254,  sec.  470. 
Tudor  V.  Perkins,  3  Day  364,  sec.  471. 
Tunstall  v.  Worthington,  Hemp.  (C.  C.) 

662,  sec.  332.     ' 
Tupper  V.  Cassell,  45  Miss.  352,  sees. 

326,  398,  530. 
Turbill's  Case,  1  Saund.  67,  sec.  502. 
Turner  v.  Armstrong,  9  Yerg.  412,  sees. 
447,  400. 
V.  Burnell,  48  Wis.  221,  sec.  394. 
V.  Fendall,   1   Cranch  117,  sees. 
330,  347,  404,  420,  421. 
Tweedy  v.  Nichols,  27  Conn.  519,   sec. 

390. 
Twopenny  v.  Peyton,  10  Sim.  487,  sec. 

428. 
Tyler  v.  Winslow,  46  Me.  348,  sec.  532. 
Tyson  v.  Keynolds,  52  Iowa  431,  sec.  401. 


IT. 

Ullmeyer  v.  Ehrmann,  24  La.  An.  32, 

sec.  367. 
Underbill  v.  Calhoun,  63  Ala.  216,  sec. 

419. 
Union  Bank  v,  Dillon,  75  Mo.   380,  sec. 

392. 


United  States  v.  Amedy,    11   Wheat. 
392,  sec.  342. 
V.  Arredondo,   6  Peters 

691,  sec.  395. 
V.    Graff,  67  Barb.  304, 

sec.  3.33. 
V.  Heth,  3    Cranch  399, 

sec.  395. 
V.  Langton,  5  Mason  C. 

C.  280,  sec.  380. 
V.    Vaughn,    3    Binney 
(Pa.)    394;    5  Am. 
Dec.  375,  sees.  340, 
402,  428,  437. 
Ex.  Co.  V.   Bedbury,  34 
111.  459,  sec.  522. 
Updegraff  v.  Spring,  11  Serg.  &  E.  188, 

sec.  531. 
Upham  V.   Naylor,   9  Mass.   490,    sec. 

490. 
Upton  V.  Tribilcock,  91  U.  S.  45,  sec 
408. 


Van  Amee  v.  Jackson,  35  Vt.  173,  sec. 

407. 
Van  Buskirk  v.  Hartford  F.  Ins.  Co., 
14     Conn.    141  ;  14 
Conn.    583,  36  Am. 
Dec.  473,  sees.  472, 
480,  481. 
V.  Warren,  24  Barb.  457, 
sec.  402. 
Van  Eiswick  v.  Lamon,  2    McArthur 

172,  sec.  424. 
Van  Staphorst  v.  Pearce,  4  Mass.  258, 

sees.  470,  474,  475. 
Vance  v.   McLaughlin,   8  Gratt.    289, 

sees.  416,  425. 
Varnell  v.  Speer,  55  Ga.  132,  sees.  342, 

357. 
Vason  V.   Clarke,  4  La.  An.  581,  sees. 

377,  523. 
YeHreesv.  Hicks,  4  Baxt.  (Tenn.)  380, 

sec.  389. 
Victor  V.  Hartford  Ins.    Co.,  33  Iowa 

210,  sec.  447. 
VierheUer  v.  Brutto,  6  HI.  App.  95,  sec. 

427. 
Vincent  v.  Watson,  18  Pa.  St.  96,  sees. 
474,  475. 

W. 

Wadleigh  v.  Jordan,  74  Me.  483,  sees. 

514,  520. 
Wadsworth  v.  Clark,  14  Vt.  139,  sees. 

495,  496. 
Waite  V.  Osborne,  11  Me.  185,  sees.  404, 

426,  455. 
Wakefield  v.  Martin,  3  Mass.  558,  sees. 

402,  437,  465. 
Walcott  V.  Keith,  22  K   H.  196,   sec. 

338. 
Walden  v.  Valient,   15  Mo.  409,   sees. 

460,  466. 
Waldnian  v.   O'Donnell,   57  How.  Pr. 

215,  sec.  345. 
Wales  V.  Muscatine,  4  Iowa  302,  sees, 

345,454. 


TABLE   OF   CASES. 


755 


Walke  V.  McGehee,  11  Ala.  273,  sees. 

41,',  44 J. 
"Walker  v.   Cook,   129  Mass.   577,   sec. 
345. 
V.  Detroit  etc.  R.  Co.  49  Mich. 

44G,  sees.  397,  412. 
V.  Gibbs,  2  DaU.  211,  sees.  484, 

518. 
V.  Wallace,   2  Dall.    113,  sec. 
530. 
Wallace  v.  Lawyer,  54  Ind.  501;  23  Am. 
Rep.  GGl,  sec.  422. 
V.   McConnell,  13  Reters    136, 

sees.  494,  498,  500. 
V.  Patterson,  2  Harr.  &McH. 

403,  sec.  490. 
V.  Walter  Hayward  etc.    Co., 
16  Gray  209,  sec.  470. 
Walling  V.  Miller,  15  Cal.  38,  sec.  437. 
Walters  v.   Wash.  Ins.  Co.,  1  Iowa 404, 

sec.  471. 
Ward  V.  County  of  Hartford,  12  Conn. 
404,  sees.  419,  422. 
V.  Lamson,  6  Pick.  358,  sec.  411. 
V.  Morrison,  25  Vt.  593,  sees.  472, 
481. 
Wardle  v.  Briggs,  131  Mass.  ,518,  sees. 

402,  504. 
Wardville  v.  Jones,  58  N.  H.  305,  sec. 

395. 
Ware  v.  Bucksport,  69  Me.  97,  sees.  363, 
525. 
V.  Gowan,  65  Me.  534,  sees.  328, 
450. 
Warner  v.   Perkins,   8  Cush.  518,  sees. 

353,  359,  486,  487. 
Warren  v.    Batchelder,   15  N.    H.  125, 
sec.  475. 
V.    Perkins,  8  Cush.  518,  sees. 

353,  359,  486,  487. 
V.  Sullivan,  123  Mass.  283,  sec. 
470. 
Wart   V.    Mann,    124  Mass.    586,    sec. 

473. 
Washburn  v.  N.  Y.  etc.  Mining  Co.,  41 

Vt.  50,  sees.  362,  399. 
Watson  V.  Bogaley,   12  Pa.   St.  164;  51 
Am.  Dec.  595,  sec.  469. 
V.  Todd,  5  Mass.  271,  sec.  421. 
Watkins  v.  Cason,  46  Ga.  444,  sees.  507, 
512. 
V.   Blatchinski,    40   Wis.  347, 

sec.  409. 
V.  Field,  6  Ark.  391,  sees.  512, 

513,  516,  518. 
V.  Gray,  5  Mo.  App.  571,  sec. 

400. 
V.  Otis,  2  Pick.  88,  sees.  414, 

428. 
V.  Pope,  38  Ga.  514,   sec.  473. 
Weatherwas  v.  Paine,  2  Mich.  555,  sees. 

327,  391,  399. 
Weaver  v.  Davis,  47  111.  235,  sees.  347, 

424,  426. 
Webb  V.  Holt,  57  Iowa,  712,  sees.  401, 
409. 
V.  Lea,  6  Yerg.  473,  sec.  399. 
V.  McCauley,  4  Bush  8,  sees.  422, 

454. 
V.  Miller,  24  Miss.  638,  see.  512. 
V.  Pearle,  7  Pick.  247,  sec.  428. 


Webber  V.  Bolte,  (Mich.)  Rep.  Oct.  24, 
1883,  sec.  449. 
V.  Carter,  1  Phila.  221,  see.  531. 
V.  Doran,  70  JNIe.  140,  sec.  449. 
Webster  v.  Adams,  58  Me.  317,  sees.  400, 
499. 
V.  Lowell,  2  Allen  123,  sec.  505. 
V.  McDaniel,  2  Del.  Ch'y,  297, 

sec.  497. 
V.  Randall,  19  Pick.  13,  see.  445. 
V.  Steele,  75  111.  544,  sees.  393, 
448,  532. 
Weed  V.  Jewett,  2  Met.  608;  37  Am.  Dec. 

115;  sees.  409,  470,  483. 
Weill;.  Tyler,  38 Mo.  545,  sees.  452,473. 
Weiner  v.  Pretchartt,  16  Mo.  252,  sec. 

453. 
Weinstock  v.  Bellwood,  12  Bush  139,  sees. 

465,  482. 
Weit  V.  Thayer,  118  Mass.  473,  sec.  463. 
Welch  V.  Gurley,  2  Hayw.  334,  sees.  426. 

455. 
Weller  v.  Weller,  18  Vt.  55,  sec.  515. 
Wellover  v.  Soule,  30  Mich.  481,  sees. 

336,  359,  303,  487. 
WeUs  V.  Am.  Ex.  Co.,  55  Wis.  23,  sees. 
356,  402. 
V.  Banister,  4  Mass.  514,  see.  416. 
V.  Green,  8  Mass.  .504,  sec.  456. 
V.  Mace,  17  Vt.  503,  sees.  514,519. 
Wendell  v.  Pierce,  13  N.   H.  502,  sees. 

419,  422,  454. 
Wentworth  v.  Whittemore,  1  Mass.  471, 

sees.  447,  449. 
West  V.  Piatt,  116  Mass.  308,  sees.  358, 

510. 
Western  R.  R.  v.  Thornton,  60  Ga.  300, 

sec.  412. 
WetheriU  v.  Planagan,  2  Miles  243,  sec. 

397. 
Wetter  v.  Rucker,  1  Brod.  &  B.  491,  sees. 

505,  506,  507. 
Weymouth  v.  Penobscot  Log.  Co.,  75 

Me.  41,  sec.  419. 
Wheat  V.  Piatt  City  etc.  R.  Co.,  4  Kan. 

370,  sec.  344.  . 

Wheatley  v.  Stroube,  12  Cal.  92,  sec. 

482. 
Wheeler  v.  Aldrich,  13  Gray  51,  sees. 
505,  525. 
V.  Bowen,  20  Pick.  563,  sees. 

416,  425,  426. 
V.  Day,  24  Minn.  554,  see.  483. 
V.  Emerson,  45  N.  H.  526,  sees. 

513,  517. 
V.  Moore,  13  N.  H.  478,  see. 

416. 
V.  Smith,  11  Barb.   345,    sees. 

347,  421. 
V.  Wheeler,  9  Cowen  34,  see.  482. 
Wheeloek  v.  Tuttle,  10  Cush.  123,  see. 

520. 
Whiden  v.  Drake,  5  K  H.  13,  sees.  419, 

454. 

Whipple  V.  Robbins,  97  Mass.  107,  sec. 

494. 

V.  Thayer,  16  Pick.  25,  see.  480. 

White  V.  Boyd,  20  La.  An.  188,  see.  376, 

V.  Coleman,  130  Mass.  316,  sec. 

354. 
V,  Dunn,  134  Mass.  271,  sec.  395. 


756 


TABLE    OF   CASES. 


Wliite  V.  Jenkins.  16  ilass.  G2,  sees.  414, 
428,  447. 
V.  Eichardson,  12  N.  H.  93,  sees. 

474,  477,  516. 
V.  Sprin;:^fiel(l    Inst.,    134   Mass. 
232,  sec.  377. 
Whitehead  r.  Walker,  11  L.  &  J.  Exch. 

108,  sec.  407 

Whitney  v.  Dean,  5  N.  H.  249,  sec.  441. 

V.  Munroe,  19  Me.  42;  36  Am. 

Dec.   733,   sees.  353,  490, 

491. 

Whittier  v.  Prescott,  48  Me.  367,  sec. 

433. 
Wick  V.  Branch  Bank  of  INIobile,  12  Ala. 

594,  sees.  422,  472,  481. 
Wiggins  V.  Lewis,  19  X.  H.  548,  sec.  476. 
Wigwall  V.  Union  etc.  Co.,  37  Iowa  129, 

sees.  409,  503. 
Wilcox  V.  Mills,  4  Mass.  218,  sees.  529, 

5.30. 
Wilcus  V.  King,  87  111.  107,  sec.  483. 
Wild  V.  Ferguson,  23  La.  An.  752,  sees. 

418,  422,  454. 
Wilder  v.  Bailey,  3  Mass.  289,  sees.  347, 
359,  404,  421. 
V.  Weatherhead,  32  "Vt.  765,  sees. 
359,  400. 
Wildes  V.  Nahant  Bank,  20  Pick.  352, 

sec.  407. 
Wilhelmi'  v.  Haffner,  52  lU.  222,  sees. 

466,  472. 
Wilkinson  v.  Hall,  6  Gray  568,  sec.  382. 
Willard  v.  Butler,  14  Pick.  550,  sees.  452, 
473. 
V.  Sheafe,  4  Mass.  235,  sees.  411, 
449,  484,  518. 
Willard  v.  Sturtevant,  7  Pick.  194,  sec. 

428. 
Willet  V.   Equitable  Ins.  Co.,  10  Abb. 
Pr.  193,  sees.  343,  359,  413. 
V.  Price,  32  G a.  115,  sec.  527. 
Williams  v.  A.  &  K.  E.  Co.,  36  Me.  201, 
sec.  531. 
V.   Boardman,    9    Allen   570, 

sees.  422,  456. 
V.   Gage,  49  Miss.   777,  sees. 

351,  448,  490. 
V.   Galliek,  3  Pac.  Eep.   469, 

sec.  441. 
V.  Gayle,   7   Gratt.  152,   sec. 

51.5. 
V.   Housel,   2  Iowa  154,  sec. 

320. 
V.   Ingersoll,   89  K   Y.   508, 

sec.  402. 
V.   Jones,   38  ]Md.    555,   sees. 

420,  424. 
V.   Marston,   3  Pick.   65,  sec. 

449. 
V.  Pomeroy,  27  Minn.  85,  sec. 

371. 
V.  Eeed,  5  Pick.  480,  sec.  428. 
V.  Young,  46  Iowa  140,   sec. 
376. 
Williamson  v.  Doby,  36  Ark.  689,  sec. 
4G7. 
V.  N.  J.  etc.  E.  Co.,  29  N. 
J.  Eq.  311,  sec.  395. 
WiUiar  v.  Bait.  etc.  Ass'n,  45  Md.  546, 
sec.  395. 


Willing  V.  Consequa,   Peters  C.  C.   301, 

sec.  531. 
Willis  V.  Henderson,  43  Ga.  325,  sees. 

351,  490. 
Wilson  V.  Albright,  2  G.  Greene,  125, 
sees.  359,  407,  460,  487. 
v.  Bank  of  La.,  55  Ga.  98,  sees. 

418,  419,  422,  454. 
V.   Bartholomew,  45  Mich.   41, 

sec.  401. 
V.  Burney,  8  Xeb.  39,  sec.  505. 
V.  Carson,  12  ]\Id.  54,  sec.  480. 
V.   Lewis,   10  E.    I.    285,  sees. 

419,  454. 
V.  Wood,  34  ^le.  123,  sec.  407. 
Wimer  v.  Pritchartt,  16  Mo.  252,  sec. 

445. 
Winchell  v.   Allen,  1   Conn.  385,  sees. 

404,  425. 
Windwart  v.   Allen,  13  Md.   196,   sec. 

527. 
Winslow  V.  Bracken,  57  Ala.  368,  sec. 

43.5. 
Winston  v,  Euring,  1  Ala.   29;  34  Am. 
Dec.  768,  sec.  490. 
V.  Westfeldt,  22  Ala.  560;  58 
Am.  Dec.  278,  sees.  458, 
463. 
Winthrop  v.  Carleton,  8  Mass.  456,  sec. 

501. 
Withers  v.   Fuller,  30   Gratt.  547,  sees. 

399,  521. 
Wisconsin  v.   Duluth,  2  Dill.  406,   sec. 

418. 
Wise  V.  BQlton,  4  Me.  435,  sec.  504. 
Woodr.   BodweU,   12  Pick.   268,     sec. 

479. 
Wolf  V.  Tappan,  5  Dana  361,  sees.  333, 

334. 
Wood  V.   Buxton,  108  Mass.  102,  sees. 
328,  449. 
V.  Lake,  13  Wis.  84,  sec.  494. 
^■.  Partridce,  11  Mass.  488,  sees. 

447,  449. 
V.  Wall,  24  Wis.  647,  sees.  366, 
370,  389. 
Woodbridge  v.   Morse,  5  N.   H.    519, 
sees.  347,  404,  421. 
•  r.  Winthrop,  1  Eoot  (Coim.) 
557,  sec.  384. 
Woodfolkr.  Whitworth,  5  Cold.  (Tenn.) 

56,  sees.  336,  362. 
Woodhouse  v.  Commonwealth  Ins.  Co., 

54  Pa.  St.  307,  sec.  529. 
Woodruff  V.   Bacon,   35  Conn.   97,  sec. 
531;  34  Conn.   182,  sec. 
^399. 
V.  French,  6  La.  An.  62,  sec. 
338. 
Woods  V.  MUford  etc.  Sav.  Inst.,  58  X. 

H.  184,  sec.  503. 
Woodward  v.   Woodward,   9  X.    J,  L. 

115,  sec.  404. 
Woolfolk  V.  Bank  of  America,  10  Bush 

504,  sec.  403. 
Wooster  v.  Page,  54  X.  H.  125;  20  Am. 

Eep.  128,  sec.  409. 
Worcester  Co.  Bank  v.  Dorchester  B'k,, 

10  Cush.  488,  sec.  463. 
Worthington  v.  Jones,  23  Vt.  546,  sees. 
389,  473. 


TABLE   OF   CASES. 


757 


■WrigHt  V.  Baseworth,  7  IST.  H.  590,  sec. 
329. 
V.  Foord,  5  N.  H.  178,  sees.  397, 
414,  428. 
Wrigley  v.  Geyer,  4  Mass.  102,  sees.  452, 

473. 
Wyatt's  Adm'r  v.  Rambo,  29  Ala.  510, 

sees.  399,  505. 
Wybrants  v.  Rice,  3  Tex.  458,  sees.  460, 

466. 
Wyman  v.  Hichbom,  6  Cusb.  264,  sees. 
482,  483. 
V.  Stewart,  42  Ala.  163,   sec. 
523. 

Y. 

Yarborough  v.  Tbompson,  3  Smedes  &  M. 
291;  41  Am.  Dec.  626,  sec.  460. 


Yeates  v.  Groves,  1  Ves.  Jr.  281,  sec. 

482. 
Yerbey  v.  Lackland,  6  Ilarr.  &  J.  446, 

sees.  399,  405. 
Yocum  V.  White,  36  Iowa  288,  sees.  504, 

507. 
Yorgue  v.  Linton,  6  Rich.  275,  sees.  441, 

442. 
Young  V.  Cooper,  59  111.  121,  sec.  497. 

V.  Ross,  31  N.  H.  201,  sees.  344, 

359,  412. 
V.  Young,   2  Hill  (S.    C.)  425, 
sees.  425,  498. 


Zang  V.  Stover,  2  N".  Mex.  29,  sec.  304, 
Zurcher  v.  Magee,  2  Ala.  253,  sees.  347, 
421. 


i 


INDEX. 


4 


INDEX  TO  VOLUME  II. 


Abatement,  matter  of,  cannot  be  placed  in  issue  by  garnishee's  answer,  §  372. 

may  be  by  answers  to  interrogatories,  390  (p.  117). 

prior  garnishment  pleaded  in,  by  attachment  defendant,  500. 

acceptance  of  order  to  pay  sum  certain,  takes  precedence  of  garnish- 
ment, 371  (p.  84.) 

of  notice  of  assignment  of  debt,  where  drafts  not  accepted,  held  equit- 
able assignment,  437  (p.  225). 

of  drafts  against  fund,  prior  to  service,  releases  garnishment,  437  (p. 
226),  444  (p.  237). 

necessary  to  render  drawee  liable  to  holder,  438. 
Accounts,  between  garnishee  and  defendant  to  be  disclosed  in  answer,  367 
(p.  78),  370. 

open,  possession  of,  does  not  authorize  garnishment,  407. 

assignment  of,  469. 
Acquiescence,  of  garnishee,  will  not  bind  defendant,  336,  361. 
Action,  cause  of,  against  garnishee,  rule  as  to,  and  exceptions,  327. 

garnishment  is  an,  332,  350,  392  (p.  122). 

subject  of,  jurisdiction  of,  391. 

pending  for  same  demand  at  date  of  garnishment,  492,  496. 
Actual  possession,  of  defendants'  property  by  garnishee,  distinguished  from 

constructive  possession,  411. 
Additional  answers,  filed  by  garnishee,  383. 

Administrators,  when  not  subject tj  garnishment,  404  (p.  148),  42Si,  426,  455. 
Admissions,  as  evidence  on  trial  of  issues,  384,  396  (p.  130). 
Affidavit,  required  in  garnishment,  325,  356. 

furnished  by  plaintiff,  326. 

requisites  of,  and  errors  in,  356. 

cannot  be  contradicted  by  garnishee,  372. 

waivers  of  defects  in,  by  garnishee,  386. 

insufficiency  of,  as  a  defense,  405. 

which  garnishee  believes  to  be  true,  annexed  to  answer,  369. 
Agent,  or  servant  of  debtors,  Avhen  not  liable  in  garnishment,  330,  349,  430. 

of  private  corporation,  service  of  garnishment  on,  360,  429. 

answering  for  principal,  385,  522  (p.  393). 

possession  of  property  by,  renders  principal  liable  as  garnishee,  411  (p. 
164). 

fiscal,  of  government,  cannot  be  effectually  garnished,  422  (p.  193). 

of  defendant,  garnishee's  promise  to  pay  does  not  affect  liability,  438 
(p.  229). 

service  on,  will  not  bind  principal,  when,  456. 
Alabama,  statutes  as  to  claims  of  interveners,  425. 

statutes  relating  to  attachment,  (pp.  419-28). 

issue  of  the  writ,  p.  419. 

in  what  manner,  and  upon  what  property  executed,  p.  421. 

for  advances  to  make  crops,  p.  422. 

replevy  and  claim  of  property,  p.  423. 

proceedings  against  garnishees,  p.  423. 

collateral  issues,  p.  423. 

ancillary  attachments,  p.  426. 

judicial  attachments,  p.  423. 

(761) 


762  INDEX. 

Alabama  -  -Continued. 

pleadings,  trial  and  execution,  p.  425. 

against  steamboats,  p.  426. 

ne  exeat,  equitable  attachment,  and  other  writs  of  seizure,  p.  427. 
Allowance  made  to  garnishee  for  answering,  p.  3S9. 
Amendment,  of  process,  §  358. 

of  garnishee's  answer,  to  disclose  assignment  of  debt  after  service,  371 
(p.  85). 

generally,  383. 

after  exceptions  taken  and  sustained,  387  (p.  1 12). 
Amount,  due  from  garnishee,  uncertainty  of,  will  not  defeat  garnishment,  450. 
Annuity,  when  and  when  not  recoverable  by  garnishment  of  person,  by  whom 

payable,  449  (p.  249). 
Answer,  of  garnishee,  364-89. 

to  bind  defendant,  must  be  under  regular  process,  336. 

property  received  or  debts  contracted  after,  unaffected,  338  (p.   30). 

may  be  several,  when  garnishees  jointly  summoned,  353. 

may  be  written  or  oral,  357  (p.  61). 

by  attorney  of  corporation,  3G0,  (p.  67). 

as  waiver  of  service  of  process,  361. 

considered  generally,  and  as  a  pleading,  364. 

written,  365. 

to  interrogatories,  as  means  of  discovery,  366. 

direct  denial  of  possession,  or  indebtedness,  by^  367. 

facts  not  placed  in  issue  by,  372. 

disclosure  of  matters  of  belief,  368. 

documents  annexed  to  answer,  369, 

disclosure  of  accounts,  relevancy  of  interrogatories,  370.    • 

prior  assignment,  371,  481. 

as  to  capacity  in  which  property  held,  374. 

as  to  garnishee's  interest  in  fund  or  property,  375. 

privileged  communications,  376. 

when  doubtful  or  uncertain,  construed  against  garnishee,  377,  523  (p. 
397). 

when  need  not  be  certain  and  explicit.  378. 

of  statute  of  limitations,  379. 

extent  to  which  taken  as  true,  380. 

taken  as  evidence,  381. 

of  prior  garnishment,  382.  , 

amendment  of,  383. 

estoppel,  384. 

by  private  corporations,  through  agents,  385. 

effect  of,  as  general  appearance,  386. 

exceptions  to  sufficiency  of,  387. 

time  within  which  must  be  made,  388. 

consequences  of  failure  in  making,  389,  522. 

to  be  construed  fairly,  according  to  import  of  language,  377  (p.  96). 

issues  on,  between  plaintiff'  and  garnishee,  390-97. 

evidence  on  trial  of  traverse  of,  396,  523. 

indebtedness  prior  to,  483. 

judgment  on,  523. 
Appeal,  duty  of  garnishee  to  prosecute,  402  (n.  5). 

default  not  set  aside  on,  525. 
Appearance,  of  garnishee,  when  voluntary,  will  not  bind  defendant,  336,  331. 

of  defendant,  as  waiver  of  process,  etc. ,  362. 

of  garnishee,  as  waiver  of  error  in  return  to  process,  363  (p.  71). 

effect  of  answer  as,  386. 

of  claimant  of  attached  property,  how  procured,  435. 
Arizona,  statutes  relating  to  attachment,  pp.  429-32. 

actions  in  which  will  lie — issue  of  writ — affidavit,  bond,  p.  429. 

execution  and  return,  pp.  429-30,  432. 

perishable  propertj^  p.  430. 

adverse  claims — judgment  and  execution,  p.  431. 
Arkansas,  statutes  relating  to  attachment,  pp.  4.32-41,  _ 


INDEX.  763 

Arkansas  —Continued. 

the  statutory  grounds,  p.  432. 

execution  and  return  of  writ,  p.  434, 

disposition  of  attached  property,  p.  435. 

proceedings,  p.  435. 

before  debt  due,  p.  437. 

attachments  specific,  p.  438. 

discharge  and  reinstatement,  p.  438. 

interpleader,  p.  440. 

boats,  vessels,  etc.,  p.  440. 
Assent,  of  assignee  to  transfer  of  wliich  lie  was  ignorant,  not  presumed,  §  438. 
Assets,  concealed,  disclosed  by  answers  to  interrogatories,  366. 

of  partnership-credits,  490. 
Assignee,    of  debt,   not  bound  by  garnishee's  voluntary  appearance,    336 
(p.  24). 

not  affected  by  subsequent  garnishment,  338  (p.  30). 

not  bound  by  judgment  against  garnishee,  with  notice,  who  fails  to 
disclose  assignment  in  answer,  371,  (p.  83)  500,  504  (p.  348). 

in  bankruptcy  and  insolvency,  cannot  be  garnislieed,  423. 

for  benefit  of  creditors,  may  purchase  demands  against  debtor,  434, 
(p.  220). 

not  subject  to  garrushment  until  he  has  surplus,  437  (p.  226). 

of   warehouse  receipt,  rights   of  as   against  attaching  creditors,  445 
(p.  240). 
Assignment,  effect  of,  when  fraudulent,  327,  330. 

of  debt  not  in  existence  creates  no  attachable  demand,  335. 

of  chose  in  action,  notice  to  debtors  essential,  371. 

disclosed  by  answer,  371. 

should  be  made  in  good  faith,  371  (p.  86). 

validity  of  in  issue  between  plaintiff  and  garnishee,  390  (p.  118),  397. 

prior  to  service,  as  defense,  402. 

equitable,  prior  to  service,  437,  500. 

of  policy  of  insurance,  held  binding  without  notice,  437  (p.  225). 

of  garnishee's  indebtedness  and  contracts  affecting  his  liability,  465,  482. 

equitable  assignment  of  chose  in  action,  465. 

of  instruments  non-negotiable,  466. 

ov^erdue  commercial  paper,  467. 

of  debts  evidenced  by  writing,  468. 

of  open  accounts,  469. 

of  future  indebtedness,  470. 

notice  of,  importance  to  debtor,  471. 

when  and  by  whom  should  be  given,  472. 

contract  relations  with  defendant,  473. 

with  third  person,  474. 

consideration,  475. 

must  be  with  party  capable  of  contracting,  476. 

garnishee's  liability  as  surety  for  defendant,  477. 

defendant's  representative  capacity,  478. 

contracts  and  assignments,  held  fraudulent,  479. 

law  that  determines  validity  of,  480. 

duty  of  garnishee  to  disclose  rights  acquired  by,  481. 

form  and  substance  of,  482. 
Assumpsit,  when  will  lie  for  tortious  cause  of  action,  447  (p.  246). 

cause  of ,  action  for  which,  would  lie,  alone  support  garnishment,  447,  448. 
Attachment,  garnishment  a  mode  of,  325. 

cause  of,  necessary  to  support  garnishment,  327. 

by  garnishment  and  by  seizure,  distinguished,  .338. 
Attorney,  of  corporation,  when  may  not  accept  service,  336  (p.  24). 

of  debtors  as  garnishee,  349  (p.  48),  431. 

of  corporation  may  answer,  360  (p.  67). 

in  fact,  answer  of,  denying  indebtedness,  372. 

holding  money  or  property,  to  secure  payment  for  future  services,  375 
(p.  91). 

communications  to,  not  always  privileged,  376. 


■ 


7G4  INDEX. 

Attorney — Continued. 

power  of,  authorizing  transfers  of  stock,   held  equitable  assignment, 
§  437  (p.  225). 

Bailee,  of  defendant,  should  not  be  garnished,  when,  3oO. 

should  disclose  cajjacity  in  which  property  held,  374. 

of  surety  as  garnishee,  412. 

using  money  as  his  own  will  not  subject  his  stakeholder  tagamishment, 
416  (p.  174). 
Bank,  officer  of,  as  garnishee,  330  (p.  12),  348,  429  (p.  213). 

stock,  not  attachable  after  assignment,  340  (p.  34). 

bills  of,  seized  when,  407  (p.  154). 

as  garnishee  of  trustee,  41G  (p.  174),  428  (p.  211). 

held  as  garnishee  of  depositor,  notwithstanding  notice  of  intended  drafts, 
438. 

deposit  in,  evidenced  by  certified  check,  cannot  be  reached,  460  (p.  269). 
Bankruptcy,  assignee  in,  not  required  to  answer  as  garnishee,  423. 
Bar,  of  judgment,  in  garnishment,  to  subsequent  action  by  garnishee's  credit- 
or, 502. 
Belief,  knowledge  or,  denial  of  in  answer,  when  sufficient,  367,  368. 

of  garnishee  in  facts,  not  in  issue  by  traverse,  390  (p.  117). 
Bill,  of  exchange,  acceptance  of  prior  to  service  releases  garnishee,  437  (p. 
22G),  444  (p.  237). 

necessary  to  render  drawee  liable  to  holder,  438. 

negotiable,  garnishment  of  party  to,   458-64.       (See   Negotiable  Ix- 

STJiUMENTS.  ) 

of  exchange  as  equitable  assignment^  465  (p.  230),  482. 
Bona  fides,  of  transfers  on  assignment,  to  defeat  garnishment,    434.     (See 
Fraud,  Fraudulent  Assigxmexts  and  Transfers.) 

of  judgment  against  garnishee,  505  (p.  360). 
Bond,  required  in  garnishment  prior  to  summons,  325,  356. 

furnished  by  plaintiff,  326.     (See  Statutes  in  Appendix.) 

not  available  for  pi-otection  of  garnishee,  333  (p.  18),  356,  403. 

insufficiency  of,  as  a  defense,  405. 
Bonds,  of  corporation,  in  hands  of  its  officers,  not  attachable,  407  (p.  156). 
Brokers,  board  of,  not  subject  to  garnishment,  in  suit  against  insolvent  mem- 
ber, 434  (p.  220). 
Burden  of  proof,  cast  upon  plaintiff  by  answer,  380,  381,  397. 

not  sliifted  by  merely  contradicting  answer,  381. 

California,  statutes  relating  to  attachment,  pp.  442-45. 

actions  in  which  will  lie,  p.  442. 

affidavit  and  bond,  p.  442. 

execution  and  return  of  writ,  p.  442-5. 

garnishment,  p.  443. 

adverse  claims — forthcoming  bond,  p.  444^ 

discharge  for  irregularity,  etc.,  p.  445. 

sheriff's  return,  p.  445. 
Capacity,  in  which  property  held  by  garnishee  prior  to  service,  330,  417-431. 

answer  as  to,  374. 

issues  raised  on  by  plaintiff,  390  (p.  118). 

as  a  defense  to  the  proceeding  by  garnishment,  404* 

general  effect  on  garnishee's  liability,  418. 

when  the  party  summoned  cannot  be  sued,  418. 

municipal  corjiorations,  419. 

officers  of  the  law — clerks  of  courts,  420. 

sheriffs  and  other  executive  officers  of  courts,  421. 

treasurers  and  other  public  officers  .and  agents,  422. 

assignees,  etc. ,  in  l)ankruptcy  and  insolvency,  423. 

receivers  and  similar  officers,  424. 

executors,  425. 

administrators,  426. 

guardians  and  curators,  427. 

trustees  of  private  trusts  and  powers,  428. 

officers,  agents,  etc.,  of  private  corporations,  429. 


INDEX.  765 

Capacity — Continued. 

agents  and  servants  of  other  defendants,  §  430. 

attorneys-at-law,  431. 

in  wiiicli  debt  was  contracted  by  garnishee,  454-457. 

in  private,  representative,  478. 
Carrier,  as  defendant,  when  garnishee  owes  for  freight,  404  (p.  148). 

summoned  on  account  of  possession  of  defendant's  goods,  412  (p,  167), 
444  (p.  339). 
Certainty,  of  demand  in  defendant's  favor,  328,  394,  449-451. 

of  statement  of  counter-claim,  etc.,  required  in  answer,  375  (p.  91). 

required  in  answer,  377. 

Avlieu  not  required  in  disclosure,  378. 
Certificate,  another  name  for  garnishee's  answer,  364  (p.  73). 
Chancery,  attachment  in,  334. 
Chattel  mortgage,  cfifect  of,  on  rights  of  creditors  of  mortgagor,  440. 

on  policies  of  insurance  on  mortgaged  property,  440  (p.  291). 
Check,  certified,  bank  no  longer  debtor  of  holder,  460  (p.  269). 

considered  as  payment,  510. 
Choses  in  action,  cannot  be  reached  by  garnishment  of  holder,  329  (p.  10), 
407. 

equitable  assignment  of,  generally,  465. 
Claimant,  of  property  on  credits  attached,  may  intervene,  354. 

burden  of  contest  cast  upon,  374  (p.  90). 

when  garnishee  is,  in  his  own  right,  414. 

to  appear  and  propound  claim  on  notice,  43.'5. 
Clerk  of  court,  money  in  hands  of,  not  subject  to  garnishment,  347,  420. 
Collateral  attack,  on  judgment  in  garnishment,  527. 
Collusion,  between  garnishee  and  plaintiff,  that  renders  judgment  void,  505 

(p.  360). 
Colorado,  statutes  relating  to  attachments,  pp.  445-454. 

actions  in  which  will  lie,  p.  445. 

affidavit  of  grounds,  p.  445-446. 

bond — on  debts  not  due,  p.  446. 

execution  on  return  of  writ,  p.  447-450. 

adverse  claims,  p.  448. 

delivery  bonds,  p.  449. 

garnishment,  pp.  450-454. 
Competency  of  interrogatories  propounded  to  garnishee,  370  (p.  82). 
Conditions,  to  garnishee's  liability,  451. 

essential  to  effectiveness  of  judgment  and  satisfaction  as  defense  to  sub- 
sequent action,  504. 
Connecticut,  statutes  relating  to  attachments,  pp.  454-461. 

service  of  mesne  process,  etc. ,  and  interests  thereby  acqviired,  454. 

intervention  by  creditors,  p.  460. 

foreign  attachment,  p.  460-461. 
Consideration,  for  assignment  of  demand,  immaterial  to  debtor,  notified,  371 
(p.  85). 

for  transfer  of  property,  in  issue  on  answer,  433,  434. 

of  debt  owing  by  garnishee,  453. 

must  be  lawful,  448  (p.  247),  453. 

of  contract  with  tlurd  person,  that  affects  garnishee's  liability,  475. 

failure  of,  as  defense  to  defendant's  cause  of  action,  519. 
Consolidation  of  actions,  to  subject  same  credits  to  satisfaction  of  different 

deljts,  354. 
Constructive  possession  of  defendant's  property  by  garnishee,  411. 
Consuls  of  foreign  governments,  subject  to  process  in  state  courts,  346. 
Continuance,  for  further  answer,  allowed,  .392  (p.  122). 

of  suit,  brought  subsequent  to  garnishment,  501. 
Contracts,  that  create  demand,  attachable  by  garnishment,  328. 

between  defendant  and  garnishee,  that  afi'ect  latter'a  liability,  443-445, 
473-482. 

to  deliver  property  to  owner,  443. 

that  qualify  garnishee's  liability,  444. 

by  whie?!  garnishee's  liability  unaffected,  445, 


766  INDEX. 

A 
Contracts — Cojitlnued. 

of  indemnity,  §  453.  • 

consideration  of,  475.  .  . 

must  be  with  parties  capable  of  contracting,  476. 

fraudulent,  effect  of,  on  assignments,  479. 
Control,  of  defendant's  property  by  garnishee,  actual  or  legal,  412. 
Corporations,  private,  garnishment  of  officer  of,  against  company,   330,  348, 
412  (p.  167),  429. 

attorney  of,  may  not  accept  service,  ■when,  336  (p.  24). 

as  garnishee  generally,  342. 

municipal,  as  garnishee,  345. 

private,  service  of  notice  on,  359  (p.  63),  360. 

answer  by,  385. 

bonds  of,  in  hands  of  its  officers,  not  attachable,  407  (p.  156). 

shares  of,  in  capital  stock,  not  property,  408. 

authority  of  agent  of,  to  appear  for,  522  (p.  393). 
Costs,  garnishee  required  to  pay,  389. 

liability  of,  for,  530. 
Counter-claim  and  set-off,  in  favor  of  garnishee,  against  defendant,  375  (pp. 

91-92). 
Court,  having  jurisdiction  in  garnishment,  391. 

of  inferior  jurisdiction,  limitation  of,  as  to  amount,  399  (p.  138). 

in  which  action  pending,  and  garnishment  for  same  debt,  492. 
Courts,  only  inferior  have  jurisdiction  in  England,  492. 

of  concurrent  jurisdiction,  in  which  action  and  garnishment  pending  for 
same  demand,  493. 

of  different  jurisdiction,  in  which  action  and  garnishment  for  same  de- 
mand pending  concurrently,  494. 
Creditors,  attaching,  rights  of,  as  against  assignee,  etc. ,  432—442.  (See  Fraud- 
ulent Assignments  and  Teansfeks.) 

in  possession,  lien  of,  442, 

judgment  and  executioQ,  garnishment  of,  524. 
Credits,  difference  in  rules  as  to  garnishment  of,  and  of  property,  329,  407. 

claims  against  county  for  jury  service,  held  not  to  be,  456. 

negotiable,    cannot  be   reached  by  garnishment,    45S-459.     (See  Gar- 
nishee's  Indebtedness,   evidenced  by  Negotiable  Instrument.) 

jointly  owned,  whether  as  jmrtners  or  otherwise,  489-491. 
Curators,  immunity  of,  from  garnishment,  427. 
Custodia   legis,  property  in,  exempt  from  garnishment,  330  (p.  13),  347,  421. 

Dakota,  statutes  relating  to  attachment,  pp.  461-465. 

actions  in  which  will  lie,  p.  4G1. 

warrant — affidavit— bond,  p.  462. 

execution  of  the  writ,  pp.  462-463. 

custody — perishable  property,  p.  462. 

garnishment,  p.  463,  et  seq. 

delivery  bonds,  p.  464. 

on  debts  not  due — sheriff's  return,  p.  465. 
Damages,  arising  on  contract,  as  set-oft',  etc. ,  in  gamisliment,  513  (p.  375). 
Death  of  partner,  and  succession  of  survivor  to  assets,  490. 
Debt,  secured  by  garnishment,  must  be  legal,  335,  393  (p.  124),  448,  490. 

nature  of,  and  how  contracted,  447-457. 

must  be  owing  at  time  of  service,  449. 

neeil  not  be  due,  or  absolutely  certain  in  amount,  450. 

garnishment  before  maturity  of,  483-485. 

payable  in  the  future,  484. 

joint,  and  joint  and  several,  486-491. 
Debtor,  of  garnishee,  cannot  be  jjursued  by  garnishment,  333. 

of  defendant  as  garnishee,  341,  446-457. 
Declarations,  of  garnishee,  prior  to  service,  as  evidence  on  trial  of  traverse, 

§  396  (p.  130). 
Default,  judgment  by,  against  garnishee,  522. 
Defendant,  in  garnishment,  is  the  debtor,  326. 

ownership  of  property  or  credits  vinder  garnishee's  control,  327. 


INDEX. 


767 


Defendant — Continued.  _  _        *      _ 

must  have  cause  of  action  against  garnishee,  §  327. 

nature  of  demand  of,  against  gamisliee,  328. 

cannot  be  made  garnishee,  330. 

not  bound  by  garnishee's  voluntary  appearance,  336. 

indebtedness  to,  denied,  337. 

under  no  obligation  to  protect  garnishee,  337. 

may  demand  property  pending  proceedings,  338  (p.  29). 

represented  in  garnisliment  by  plaintiff,  340. 

may  waive  process,  362. 

may  confess  judgment,  and  bind  garnishee,  393  (p.  123). 

when  must  be  protected  by  garnishee,  399,  (p.  136). 

appearance  of,  and  waiver,  excuses  garnishee's  failure  to  object,  399 
(p.  138), 

interest  of,  in  property  held  by  garnishee,  410,  416. 
Defenses,  that  cannot  be  interposed  under  denial  of  indebtedness,  372. 

fruitless,  made  by  garnishee,  consequences,  389. 

of  exemption,  etc.,  395,  401. 

must  be  made  by  garnishee  at  his  own  expense,  398. 

want  of  jurisdiction,  399. 

prior  garnishment,  400. 

prior  assignment,  402. 

of  payment,  no  goods,  etc.,  403. 

of  garnishee  to  defendant's  cause  of  action,  509- -520. 

which  garnishee  may  make  in  his  own  behalf,  509. 

prior  payment  to  defendant,  510. 

manner  and  time  of,  511. 

under  compulsory  process,  512. 

set-off,  or  cross-demand,  513. 

considered  as  to  parties  interested,  514. 

character  of  demand,  whether  legal  or  equitable,  51 5» 

collateral  liability  for  defendant,  516. 

when  acquired  to  become  available.  517. 

whether  due  or  to  become  due,  5 18. 

failure  of  consideration,  519. 

statute  of  limitations,  520. 
Delaware,  statutes  relating  to  attachments,  pp.  465-469. 

attachment  generally,  p.  465. 

mesne  process,  p.  468. 

shares  of  stock,  p.  468. 
Delivery,  of  goods,  necessary  to  create  indebtedness,  328. 

to  garnishee,  necessary  before  service  of  process,  444  (p.  238). 
Demand  in  favor  of  defendant  must  be  absolute,  liq  "^dated.  ex  contractv^  and 
certain,  328,  447. 

may  be  either  for  specific  articles  or  money,  328. 

secured  by  garnishment,  must  be  legal  and  not  equitable,  335,  448. 

necessary  to  render  debt  due,  394. 

debt  should  not  be  contingent,  449-451. 

payable  in  money,  452. 

consideration  of,  453. 

character  of,  whether  legal  or  equitable,  to  be  set-off  to  defendant's 
claim,  515. 

Denial,  of  indebtedness,  what  may  be  proved  under,  364  (p.  73),  367. 

of  possession,  what  suiScient,  367. 

not  sufficient  answer  when  garnishee  has  been  notified  of  aaaignmeni, 
371  (p.  83). 

facts  not  to  be  placed  in  issue  by,  372. 
Depository,  as  garnishee,  349  (p.  48). 

Devise,  trusts  created  by,  unaffected  by  garnishment,  428  (p.  207). 
Diligence,  showing  of,  required  from  garnishee  in  default,  522,  523L 
Discharge,  of  garnishee  on  payment,  334  (p.  20). 

by  judgment  of  court,  528. 
Discovery,  interrogatories  and  answer  as  a  means  of,  366. 


7G8  INDEX. 

Disclosure,  in  answer  of  one  of  several  garnishees,  cannot  affect  another,  §  353. 

of  prior  assignment,  371,  481. 

of  trusts,  374. 

of  matters  of  belief,  368. 
Discretion,  of  court  to  admit  documents  offered  with  garnishee's  answer,  369. 

whether  garnishee  shall  be  allowed  attorney's  fee,  389. 
Dismissal  of  proceedings  disposes  of  intervenor's  claim,  3o4. 
Dissolution,  for  irregularity  or  on  traverse  of  affidavit,  325, 
Documents,  annexed  to  garnishee's  answer,  369. 

treated  as  genuine  until  contrary  shown,  380  (p.  100). 
Doubtful  answers,  construed  against  garnishee,  377. 

but  only  where  doubt  arises  from  his  equivocal  manner,  377  (p.  97). 
Draft,  acceptance  of,  prior  to  service,  releases  garnishee,  437  (p.  226). 

necessary  to  render  drawer  liable  to  holder,  438. 

Effect  of  garnishment,  regularly  served,  338. 
Effects,  possession  of,  which  will  authorize  garnishment,  407. 
Equitable  rights,  not  subject  to  garnishment,  335,  351. 
Equity,  will  not  aid  garnishment,  334. 

will  relieve  against  judgment  obtained  by  fraud,   but  not- where  gar- 
nishee is  negligent,  527  (p.  402). 
Errors,  of  procedure,  whether  amendable  or  not,  358. 

in  return  of  officer  held  waived  by  appearance,  363  (p.  71). 
Estoppel,  the  doctrine  of,  applied  to  garnishees,  384,  396  (p.  130). 
Evasive  answers  construed  most  strongly  against  garnishee,  377  (p.  96). 
Evidence,  garnishee's  answer  considered  as,  364  (p.  73),  381,  396,  523. 

how  far  conclusive — burden  of  proof,  380,  381. 

on  trial  of  the  traverse,  39j,  523. 

burden  of  proof,  397. 
Examination,  of  garnishee  by  plaintiff,  366. 

abuse  of,  guarded  against  by  courts,  310. 

ordered  by  court  for  refusal  to  furnish  "certificates,"  380  (p.  lOOV 

penalty  for  failure  to  appear  for,  389  (p.  115). 
Exceptions,  taken  to  sufficiency  of  answer,  387,  390. 

otherwise  cannot  be  stricken  out,  387  (p.  112). 
Execution,  money  collected  by  officer  on,  exempt  from  attachment,  347. 

stay  of,  in  case  of  prior  garnishment  for  same  demand,  501. 

payment  under,  held  essential  to  satisfy  debt,  507,  512. 

creditors,  garnishment  of,  524, 
Executors,  when  not  subject  to  garnishment,  404,  (p,  148)  425. 

and  administrators,  garnishment  of,  for  debts,  455, 

claim  in  favor  of,  as  set  off  to  defendant's  demand,  514. 
Exemption,  from  garnishment  of  municipal  corporations,  345,  419. 

of  states  from  process  of  garnishment,  346,  418, 

of  money  collected  on  execution,  347. 

as  a  defense,  373,  395,  401,  409. 

must  be  under  the  laws  of  state  where  suit  pending,  373,  395  (p.  128), 
409  (p.  161). 

in  issue  on  trial  of  traverse,  397. 

from  execution  is  also  exemption  from  attachment,  401  (p.  141-142). 

statutory,  garnishee  not  chargeable  for  property  embraced  in,  409. 

from  garnishment  of  state  officers,  418  (p.  181). 

of  officers  of  the  law — clerks  of  courts,  420. 
Explicit,  answers  required  from  garnishee,  377. 
Extent,  to  which  garnishee  required  to  defend,  398-404^ 

want  of  jurisdiction,  399. 

generally,  398. 

prior  garnishment,  400. 

exemption,  401. 

assignment  prior  to  service,  402. 

payment,  no  goods,  etc.,  403, 

capacity  in  which  garnishee  holds  property,  404, 

other  matters  of  defense,  405. 

of  garnishee's  liability,  529-532. 


INDEX.  769 

Extent — Continued. 

fixed  by  amount  in  garnishee's  hands,  §  529. 

for  costs,  530. 

for  interest,  531. 

limited  by  amount  of  principal  judgment,  532. 

Factor,  synonymous  with  garnishee,  325. 
Factorizing,  same  in  effect  as  garnishment,  325. 
Facts,  not  to  be  placed  in  issue  by  denial,  372. 

constituting  exemption  should  be  stated  in  answer,  373. 

constituting  assignment  or  trust  affecting  funds  or  property,  disclosed, 
in  answer,  374. 

in  issue  between  plaintiff  and  garnishee,  390. 
Failure  of  garnishee  to  answer,  consequences  of,  389. 
Fees,  i^aid  attorney,  when  allowed  to  garnishee,  389. 
Florida,  statutes  relating  to  attachment,  pp.  469-477. 

attachment  by  direct  levy,  p.  469. 

when  will  issue — affidavit,  p.  469. 

bond — replevy — service  of  writ,  p.  471. 

pleading,  dissolution,  etc.,  p.  472. 

water-craft— mortgaged  property,  p.  473. 

garnishment,  jip.  474-477. 
Foreign  corporations,  service  of  notice  of  garnishment  on,  359  (p.  63),  361. 

cannot  bind  its  creditor  by  voluntary  appearance  as  garnishee,  3G1. 

debt  due  from,  cannot  be  attached  by  service  on  agent,  456  (p.  260). 
Foreign  governments,  their  re^jresentatives  as  garnishees,  346. 
Form,  objections  to  matters  of,  held  waived  by  appearance,  386. 

and  substance  of  assignment,  etc. ,  affecting  garnishee's  liabiUty,  482. 
Fourth  party  to  the  controversy,  432. 

Fraud,  that  defeats  defendant's  right  of  action  against  garnishee,    does  not 
prevent  garnishment,  327. 

may  be  disclosed  to  defeat  garnishee's  title,  by  interrogatories* and  an- 
swer, 370. 

to  be  taken  advantage  of,  should  be  against  creditor  complaining,  394 
(p.  125). 

evidence  of,  in  trial  of  traverse,  396  (p.  130). 

judgment  obtained  by,  relief  against,  in  equity,  527  (p.  402). 
Fraudulent  assignment,  effect  of,  on  subsequent  attachment,  327,  4305  462. 

prior  to  sei'vice,  cannot  be  reached  by  garnishment,  338  (p.  30). 

may  b;  disclosed  by  examination  of  garnishee,  316  (p.  94). 

or  transfer  will  not  always  charge  transferee,  412  (p.  167),  434. 

effect  of,  u^jon  subsequent  garnishment,  47  9. 
Fraudulent  transfer,  of  personalty,  contested  by  plaintiff,  434,  438,  439. 

Gambling,  debt  created  by,  wiU  net  support  garnishment,  448  (p.  247). 
Garnishee,  styled  as  "trustee  "  or  "factor,"  325,  340. 

one  of  the  necessary  parties,  326. 

regarded  as  a  stakeholder  between  plaintiff  and  defendant,  326,  331, 
340,  389,  398. 

duty  of,  to  resist  proceeding,  326,  340,  399. 

liability  of,  to  plaintiff,  327,  331,  406-410. 

capacity  in  which,  holds  property  of  defendant,  330,  404^ 

as  custodian  of  attached  property,  331,  337. 

judgment  against,  will  not  support  garnishment,  333. 

cannot  avail  himself  of  attachment  bond,  333. 

discharged  on  pajrment  of  the  debt,  334  (p.  20). 

acquiescence  of,  in  proceeding  will  not  bind  defemlant,  336L 

who  may  be,  340  (p.  35),  341. 

plaintiff  as,  341. 

Btate  cannot  be  held  as,  346. 

agent  or  servant  of  debtor  as,  349^ 

wife  of  debtor  as,  350. 

co-debtor  of  defendant  as,  351. 

judgment  debtor  as,  352. 
II— Attacument— 24 


770  INDEX. 

Garnishee — Conthnied. 

waiver  of  process  by,  §  361,  399. 
protection  of,  after  answer,  371. 
bound  to  disclose  assignment  of  wliicli  lie  is  notified,  371  (pp.  83-4-5), 

436,  481. 
interest  of,  in  property  in  fund  attached,  375. 

may  challenge  competency  and  relevancy  of  interrogatories,  370  (p.  82). 
doubtful  and  uncertain  answers  construed  against,  377. 
regarded  as  a  witness  for  plaintiflf,  381  (p.  102). 
embarrassing  position  occupied  by,  308  (p.  134). 
extent  to  which,  bound  to  defend  the  action,  398-405. 
liability  of,  in  respect  to,  personally  in  possession,  406-41(X 
character  of  possession,  411-416. 
capacity  in  which  property  is  held,  417-431. 
double  liability  of,  436. 

liability  of,  as  debtor  of  defendant,  446-457. 
maker  of  negotiable  paper  as,  458-464 
defense  of,  to  defendant's  cause  of  action,  509-520. 
must  show  diligence  and  meritorious  defense  to  set  aside  default,  523, 

525. 
discharge  of,  by  judgment  of  court,  528. 
Garnishees,  jointly  indebted  and  credits  jointly  owned,  486-491. 
jointly  and  severally  indebted,  486. 
jointly  indebted,  487. 
severally  indebted,  488. 

credits  jointly  and  severally  owned  by  defendants,  489.       . 
partnership  credits,  490. 

jointly  owned  by  defendants,  not  as  partners,  491. 
of  judgment  and  execution  creditors,  524. 
Garnishee's  indebtedness,  evidenced  by  negotiable  instrnments,  45&  464. 
maker  of  negotiable  paper  as  garnishee,  458. 
reasons  for  rule,  that  cannot  be  held,  459. 
circumstances  that  destroy  negotiability  no  exception,  460. 
conditional  garnishment  of,  before  maturity,  461. 
where  instrument  has  been  fraudulently  assigned,  462. 
effect  of  notice  of  garnishment  on  rights  of  indorser,  463» 
by  what  law  negotiability  to  be  determined,  464. 
affected  by  existing  contracts,  478-482. 
Garnishee's  liability,   in  respect  to   personal    property  in  his  poase38ioD, 
406-410. 
the  kind  of  property — effects,  credits,  choses  in  action,  407. 
shares  in  capital  stock  of  corporations,  408. 
property  exempt  from  execution,  409. 
defendant's  interest  in,  410. 
as  a  debtor  of  defendant,  446-457. 
general  rules  governing,  446. 
nature  of  defendant's  demand,  447. 
a  legal  debt,  448. 

debt  should  not  be  contingent,  449. 

contingencies  by  which  garnishee's  liability  unaffected,  450. 
conditional  obligation  as  a  foundation  for  garnishment,  451 . 
a  debt  payable  in  money,  452. 
consideration — contracts  of  indemnity,  453. 

capacity  in  which,  contracted — municipal  corporations,  etc.,  454. 
executors  and  administrators,  455. 
in  private  representative  capacity,  456. 
plaintiff  as  garnishee,  457. 
affected  by  prior  assignments,  etc. ,  465-472. 
affected  by  contract  relations  with  defendant,  473,  477. 
affected  by  contracts  with  third  persons,  474-476. 
as  surety  of  defendant,  477. 
Garnishment,  generally  considered,  325-339. 

process  in,  described  and  distinguished  from  seizure,  325. 
necessary  parties,  326. 


INDEX.  771 

Garnishment — Continued. 

garnishee's  liability  to  plaintiff,  §  327. 
defendant's  demand  against  garnishee,  328. 
property  that  may  be  reached,  329. 

capacity  in  which  property  held  bygarnishee  before  service,  330. 
after  service,  S31. 

nature  and  object  of  the  proceeding,  332. 
purely  statutory,  333. 
unaided  by  equity,  334. 
equitable  rights  not  subject  to,  335,  448. 
judgment  depends  on  regularity  of  process,  336. 
when  garnishee  opposed  to  both  principal  parties,  337. 
effect  of,  regularly  served,  338. 

the  term  preferred  to  "trustee  process"  or  "fotorizing,"  325  (n.  10). 
nature  of  lien  on  specific  articles  created  by^  329. 
regarded  as  a  suit,  332,  340. 
of  ganiishee's  debtor  not  permitted,  333. 
whether  joint  or  several,  353. 
prior,  set  up  in  garnishee's  answer,  382,  400. 

at  an  end  by  plaintiff's  failure  to  traverse  denial  of  indebtedness,  390 
(p.  118). 

of  debts  before  maturity,  483-485. 

indebtedness  at  the  time  of  service  or  prior  to  answer,  483. 

debts  payable  in  the  future,  484. 

garnishee  not  required  to  pay  until  his  debt  is  payable,  485» 

after  suit  by  defendant  against  garnishee,  492-499. 

actions  pending  in  same  court,  492. 

in  different  courts  of  concurrent  jurisdiction,  493. 

in  distinct  court  of  different  jurisdiction,  494. 

where  judgment  against  garnishee  will  bar  action  by  defendant,  495.. 

where  action  by  defendant  will  bar  garnishment  proceedings,  496. 

judgment  debtors  charged  as  garnishees,  497. 

cannot  be  garnished,  498. 

prior  judgment  in  favor  of  party  summoned,  499; 

effect  of,  prior  to  suit  by  defendant,  500-508. 

pleaded  in  abatement  by  attachment  defendant,  500^ 

as  ground  for  continuance  of  subsequent  suit  or  stay  of  execation,  501. 

effect  of  judgment  of  garnishee,  502. 

and  satisfaction  thereof,  503. 

essential  conditions  to  the  effectiveness  of,  504. 

validity  of,  505. 

how  satisfied,  to  constitute  valid  defense,  .'506. 

payment  under  execution,  507. 

judgment  in,  in  favor  of  garnishee,  508. 
Georgia,  statutes  relating  to  attachment,  pp.  478-490^ 

issuing  writ,  p.  478. 

affidavit,  bond,  writ,  form  of,  p.  480. 

execution  and  return,  property  subject  to,  etc.,  p.  480. 

purchase-money,  p.  481. 

fraudulent  debtors,  482. 

garnishment  proceedings,  p.  482. 

pleading  and  defenses,  p.  483. 

replevy  and  disposition  of  property,  p.  485. 

claims  and  proceedings  therein,  p.  485. 

lien  of  attachment,  judgment  and  execution,  p.  486. 

garnishment,  p.  487. 
Gift,  conditions  of,  not  disturbed  by  garnishment,  428  (p.  207),  433. 
Guaranty,  of  debt,  without  knowledge  of  debtor,  434  (p.  219). 
Guardian,  when  cannot  be  held  as  garnishee,  404  (p.  149),  427. 
Heir,  interest  of,  in  decedent's  estate  attached,  425,  426. 
before  and  after  distribution  ordered,  426. 

Husband,  or  wife,  as  garnishee  in  suit  against  the  other,  350. 
title  of,  to  wife's  personal  property,  416  (p.  176). 


772  INDEX. 

Idaho,  statutes  relating  to  attachment,  pp.  490-493. 
actions  in  whicli  will  lie,  p.  490. 
affidavit  in  bond,  p.  490. 
execution  of  the  writ,  p.  491. 
garnishment,  p.  491,  ct  seq. 

perishable  property — judgment  and  execution,  p.  Ao2, 
delivery  bonds — officer's  return,  p.  493. 
Illinois,  garnishee's  debtor  cannot  be  garnished  in,  §  333. 
statutes  relating  to  attachment,  pp.  494-509. 
in  courts  of  record,  p.  494  et  seq. 
before  justice  of  the  peace,  pp.  499,  505. 
of  water  craft,  p.  501. 
garnishment,  p.  506. 
Implication,  neither  operation  of  statute  nor  effect  of  judgment  extended  by, 

333. 
Incumbrance,  subsequent,  will  not  disturb  lien,  338  (p.  28). 
Indebtedness,   of  garnishee,  must  be  present,  absolute,  liquidated  and  legal, 
328,  336,  394. 
legal  distinguished  from  equitable,  335. 
to  defendant  denied,  337. 
not  anticipated  by  garnishment,  338  (p.  31). 
denial  of,  in  answer,  how  supported,  364  (p.  73). 
possibility  of,  not  assignable,  371  (p.  84). 

of  defendant  to  plaintiff  not  in  issue  on  trial  of  traverse,  393  (p.  123). 
of  garnishee  in  issue  on  trial  of  traverse,  393  (p.  123). 
must  be  absolute  before  judgment,  394. 
evidenced  by  negotiable  instruments,  458-464. 
future,  assignment  of,  470. 
cannot  be  attached,  470  (p.  286). 
affected  by  existing  contract,  473-474. 
garnishment  prior  to  maturity  of,  483—485. 
Indemnity,  money  held  as,  for  obligations  assumed,  not  subject  to  garnish- 
ment, 444  (p.  238). 
contracts  of,  garnishable  debts  created  by,  453. 
Indiana,  statutes  relating  to  attachment,  pp.  510-514. 
affidavit  of  grounds — bonds,  p.  510. 
property  subject  to  seizure — service  and  return,  p.  511. 
garnishment,  p.  512  et  seq. 
Indorser  of  garnishee's  negotiable  obligation  must  be  protected,  458  (p.  264). 
Infant  ward,  guardian  of,  cannot  be  garnished  in  suit  against  ward,  437  (p.  205). 
Information  given  by  garnishee,  no  \'iolation  of  duty,  336  (p.  25). 
Inquiry,  for  the  purpose  of  discovering  concealed  property,  366  (p.  76). 

general  scope  of,  on  trial  of  traverse,  393. 
Insolvency,  assignee  in,  not  held  as  garnishee,  423. 

Insurance,  policy  of,  amount  due  on  for  loss,  not  set-off  by  premiums  due  on 
assigned  policy,  375  (p.  91),  416  (p.  172). 
company  not  garnishable  when  they  have  option  to  rebuild,  394,  449 

(p.  249), 
nor  after  assignment  of  policy,  437  (p.  225). 

assigned  to  mortgagee,  effect  of,  where  mortgage  imrecorded,  440. 
Interest,  of  garnishee  in  fund  on  property  attached,  375. 
Absence  of,  326,  331,  340,  389. 

may  be  inquired  into  on  trial  of  traverse,  393  (p.  123), 
of  defendant  in  property  held  by  garnishee,  410,  416. 
on  demand,  garnishee's  liability  for,  531. 
Interplea,  remedy  by,  in  equity  denied,  354. 

required  in  Wisconsin,  435  (p.  222). 
Interrogatories,  filing  of,  not  permitted,  until  joint  possessors  of  property 
summoned,  359  (p.  64). 
and  answers  as  means  of  discovery,  364  (p.  73). 
may  be  corrected  when  erroneous,  364  (p.  74). 
examination  by,  when  written  answer  filed,  365.. 
and  answer  as  means  of  discovery,  366. 
when  fully  answered  by  direct  denial  of  indebtedness,  etc.,  367'. 


INDEX.  773 

Interrogatories — Continued. 

relevant  and  irrelevant,  §  370. 

supplemental  and  amended,  after  answer,  383. 

garnishee  must  answer  pertinent,  or  suffer  judgment,  389  (p.  114). 

may  object  to  impertinent  or  irrelevant,  390  (p.  118). 

answers  to,  evidence  on  trial  of  traverse,  396,  523. 

default  for  failure  to  answer,  522. 

judgment  on  answers  to,  523. 
Intervenor,  a  possible  fourth  party,  340,  354,  432. 

claim  of,  as  proprietor,  433. 

issues  made  with,  435. 

to  appear  and  profiound  claim,  435. 

judgment  in  favor  of,  535  (j).  222). 

against,  526. 
Iowa,  statutes  relating  to  attachment,  pp.,  615  521. 

attachment  for  garnishment,  p.  515. 

for  debts  not  due,  p.  515. 

bond,  p.  516. 

manner  and  mode,  p.  516. 

partnership  property,  p.  517. 

garnishment,  p.  517. 

mode,  p.  518. 

judgment,  p.  518. 

release  of  property,  p.  519. 

perishable  property,  p.  519. 

specific  attachments,  p.  519. 

indebtedness  due  state,  p .  520. 
Irregularity,  dissolution  of  attachment  for,  325. 

waived  by  defendant,  when  cannot  be  taken  advantage  of  by  gamishee, 
326. 

judgment  hy  default  not  set  aside  for,  525. 
Issues,  on  answer,  between  plaintiff  and  garnishee,  390  397. 

general  nature  of — of  law  and  fact,  390. 

jurisdiction  of  subject  of  action,  391. 

practice  and  pleading  to  raise,  392. 

scope  of  inquiry  and  investigation,  393. 

further  consideration  of  garnishee's  liability— to  defendant,  894. 

defense  of  exemption,  395. 

evidence  on  trial  of  traverse,  396. 

burden  of  proof,  397. 

made  without  the  intervenor,  435, 

Joint  debtors,  as  garnishees,  351,  353  (p.  54),  487. 

service  on,  359  (p.  63),  487. 
Joint  garnishees,  how  served,  etc.,  353,  412  (p.  166). 

and  credits  jointly  owned,  486-491. 
Joint  tenants,  of  personalty,  must  be  all  summoned  as  gamisheea  of  owner, 

412  (p.  166). 
Judgment,  when  void,  no  protection  to  garnishee,  326,  327,  401  (p.  141). 

against  defendant   essential   to  recovery  from  garnishee,  327,  399  (p. 
136),  521. 

against  garnishee  depends  on  regularity  of  process,  336,  359. 

distinguished  as  to  form,  from  ordinary  judgment,  338. 

not  set  aside  on  account  of  defects  of  procedure,  when,  357  (p.  61),  366 
(P-  76). 

may  be  set  aside  on  account  of  defective  process,  359  (p.  64). 

held  void  when  jirocess  omitted,  361,  505. 

satisfaction  of,  no  defense  to  action  by  assignee  of  debt,  371  (p.  84), 
402  (n.  5). 

former,  for  same  demand,  defense  of,  not  raised  by  denial,  372. 

against  garnishee  when  he  fails  to  answer  explicitly,  377. 

vahdity  of,  505. 

as  a  bar  to  subsequent  garnishment,  382  (p.  104). 

when  garnishee  cannot  safely  submit  to,  389,  502-505. 


774  INDEX. 

Judgment—  Continued. 

for  failure  to  answer  fully,  §  389  (pp.  114-115). 

process  for  contempt,  but  no  default  taken  for,  389  (p.  115). 

when  ineffectual  against  claimant  of  property,  432. 

in  favor  of  claimant  on  interplea,  435  (p.  222). 

against  garnishee,  will  not  bmd  indorsee  of  negotiable  paper,  458. 

will  bar  action  by  defendant,  495,  502-507. 

eflfect  of,  502,  525. 

and  satisfaction  thereof,  503,  504,  506. 

prior,  in  favor  of  garnishee,  499,  508. 

against  intervener,  526. 

collateral  attack  on,  527. 

discharging  garnishee,  528. 

in  garnishment  generally,  521-528. 

upon  which  judgment  against  garnishee  depends,  521. 

by  default  against  garnishee,  522. 

set  aside,  522,  525. 

on  garnishee's  answer,  523. 

against  garnishees  of  judgment  and  exeoutLon  creditors,  524. 

force  and  effect  of,  against  garnishee,  525. 

against  intervenor,  526. 

collateral  attack  on,  527. 

discharging  garnishee,  528. 

limited  in  amount  by  sum  or  value  in  gamishee'a  hands,  629. 

by  amount  of  principal  judgment,  532. 
Judgment  debtor,  as  garnishee  of  co-debtor,  351. 

generally,  352,  497-499. 

cannot  be  garnished,  except  by  creditor  of  legal  owner  of  judgment, 
393  (p.  124). 
Juiisdiction,  must  be  complete  to  render  judgment  valid  against  defendant, 
326,  327,  339  (p.  136),  522  (p.  393.) 

to  determine  question  of,  garnishment  held  a  suit,  332. 

cannot  be  effectually  conferred  by  consent  of  garnishee,  361. 

of  subject  of  action,  391. 

want  of,  as  a  defense,  399. 

defeated  by  failure  to  negative  exemption,  401  (p.  141)- 

of  courts  in  which  garnishment  and  suit  for  same  demand,  simultane* 
ously  pending,  493,  494. 

when  question  of,  decided  against  garnishee,  held  conclusive,  505. 

of  action  against  defendant,  essential  valid  judgment  against  garnishee, 
527. 
Jury,  answer  to  go  to,  when,  381  (p.  102). 
Justice  of  peace,  in  proceedings  before,  pleading  unnecessary,  392  (p.  121). 

as  garnishee  in  respect  to  money  held  officially,  422  (p.  194). 

can  only  render  judgment  against  garnishee  after  judgment  against  de- 
fendant, 521. 

return  of,  on  certiorari,  sufElciency  of,  524. 

Kansas,  statutes  relating  to  attachment,  pp.  522-527. 

attachment,  p.  522. 

execution  and  return  of  writ,  p.  523. 

disposition  of  property,  p.  524. 

proceedings,  p.  526. 

general  provisions,  p.  526. 

in  certain  actions,  p.  526. 
Kentucky,  statutes  relating  to  attachment,  pp.  527  -BSS. 

grounds  of  attachment,  p.  527. 

how  obtained,  p.  528. 

execution  and  return  of  writ,  p.  628. 

disposition  of  property,  p.  530. 

proceedings,  p.  531. 

in  certain  actions,  p.  532. 

specific  attachments,  p.  533. 

discharge  and  reinstatement  of  attachment,  p.  634. 


I 


INDEX.  775 

Knowledge,  of  garnishee,  when  matter  of  inquiry,  not  with,  in  answer  need 
not  be  positive,  §  378. 
and  notice  distinguished,  4G3. 

Law,  issues  of,  between  plaintiff  and  garnishee,  390. 

only  deJjts  at  common,  recovered  by  garnishment,  448. 

of  place  of  contract  governs  negotiability  of  instruments,  464. 

governs  validity  of  assignments,  480. 
Legacies  due  wife,  subjected  to  husband's  debts,  416  (p.  176),  425  (p.  199). 
Letters,  from  strangers  to  suit,  offered  as  matters  of  disclosure,  3Gi8. 
Lex  loci,  governs  as  to  negotiability  of  notes  and  bills,  464. 

as  to  validity  of  assignments,  480. 
Liability,  of  garnishee  must  be  absolute,  unconditional,  etc.,  328. 

as  custodian,  pending  proceedings,  338  (p.  29). 

fixed  by  service,  338  (p.  30). 

dependent  on  process  regularly  served,  336,  361. 

double,  notwithstanding  diligence  by  garnishee,  371  (p.  85-6),  389,  402, 
435  (p.  222). 

assumed  in  behalf  of  principal  debtor  as  defense  to  garnishment,  375 
(p.  92). 

not  presumed,  where  answers  responsive,  377  (p.  97). 

further  consideration  of,  394. 

in  respect  to  personalty  in  his  possession,  406-410.     (See  Garnishee's 
Liability.  ) 

double,  for  failure  to  give  notice  of  assignment,  410  (p.  162),  436. 

as  affected  by  the  capacity  in  which  he  holds  property,  417. 

as  debtor  of  defendant,  446^57. 

as  affected  by  contract  relations  with  defendant,  443-445,  473-482. 

double,  should  be  provided  against,  492-496. 

collateral,  as  defence  to  defendant's  cause  of  action,  516. 

extent  of,  529-532. 

limitations  to,  fixed  by  amount  in  garnishee's  hands,  529^ 

for  costs,  510. 

for  interest,  531. 

limited  by  amount  of  principal  judgment,  532. 
Lien,  no  specific,,  created  by  garnishment,  325,  334,  338  (p.  28). 

quasi,  created  by  garnishment,  329,  334,  338. 

in  favor  of  garnishee  on  fund  or  property  in  his  hands,  375.. 

secured  prior  to  garnishment,  .preserved,  442. 

for  indemnity  of  party  in  poasession,   unaffected  by  gamiahee,  444 
(p.  2.3S). 
Limitations,  statute  of,  set  up  in  garnishee's  answer,  379. 

as  defense  to  defendant's  cause  of  action  against  garnishee,  520. 

to  garnishee's  liability  fixed  by  amount  in  hand,  529. 

by  amount  of  principal  judgment,  532. 
Louisiana,  statutes  relating  to  attachment,  pp.  536-539. 

garnishment — seizure — affidavit— bond,  pp.  536-537. 

interrogatories — issue  of  writ,  p.  537. 

summons  in  garnishment,  p.  538. 

appearance  of  garnishee — delivery  bond,  j).  538. 

perishable  property — issues  on  answer,  p.  539. 

Maine,  statutes  relating  to  attachment,  pp.  540-545* 

personal  property,  p.  540. 

when  may  be  sold  on  writ,  p.  540. 

of  part  owners,  how  disposed  of,  p.  542. 

mortgaged  or  pledged,  p.  542. 

death  or  removal  of  officer,  or  replevy  of  property,  p.  642. 

death  of  fjarty,  p.  543. 

real  estate,  p.  543. 

dissolution  of  attachment,  p.  544. 
Maryland,  statutes  relating  to  attachment,  pp.  646-551 . 

against  non-resident  and  absconding  debtors,  p.  546. 

after  noii  est  return,  p.  549. 


776  INDEX. 

Maryland — Contlvued. 

ou  judL,'meuts  or  decrees,  p.  549. 

on  original  process,  p.  549. 

claimant  of  property,  p.  550. 
Massachusetts,  statutes  relating  to  attacliment,  pp.  551-561* 

general  provisions,  p.  551. 

of  real  estate  and  household  estates,  p.  553. 

of  immovable  goods,  etc.,  p.  554. 

of  shares  in  corporations,  p.  554. 

of  mortgaged  or  pledged  pe'  sonal  property,  p.  555, 

of  real  estate  of  non-resident,  p.  556. 

supplementary  proceedings,  p.  556. 

sale  of  attach<-d  personal  property,  p.  556. 

bonds,  p.  558. 

interest  of  part  owner,  p.  558. 

adverse  claims  by  subsecjuent  lienors,  p.  558. 

reduction  of  excessive,  p.  559. 

dissolution  of,  by  bond,  p.  559. 
Maturity,  of  debts,  garnishment  before,  §§  48.3-485. 

indebtedness  at  time  of  ser\ace  or  priqr  to  answer,  483. 

debts  1  ayable  in  the  future,  4S4. 

garnishee  not  required  to  pay  until,  485. 
Michigan,  statutes  relating  to  garnishment,  pp.  561-573. 

against  foreign  corporations,  p.  561. 

proceedings  against  debtors  by,  pp.  561-564. 

di^ciii4^3  of  satisfied  attachments,  p.  564. 

in  suits  previously  commenced  by  summons,  etc.,  p.  565L 

in  suits  for  trespass  on  lands,  p.  565. 

tort,  against  non-residents  doing  lousiness  in.  state,  p.  566k 

dissolution  of  attachments,  p.  566. 

a|ipeals,  567. 

garnishment  in  courts  of  record,  p.  567. 
Minnesota,  statutes  relating  to  attachment,  pp.  514-581. 

attachment,  pp.  574-576. 

affidavit — bond — service  of  writ,  pp.  574-573. 

return — real  estate — discharge,  p.  576. 

garnishment,  pp.  577-581.  

jurisdiction  of  courts — service — corporations,  p.  577» 

appearance  and  examination  of  garnishee,  p.  578. 

judgment  in,  p.  579. 

answer  before  return-day,  p.  580. 

release  bond  given  by  defendant,  p.  581.  • 

Mississippi,  statutes  relating  to  attachments,  pp.  581'-590» 

against  debtors  generally,  p.  581. 

affidavit,  p.  581. 

bond,  p.  582. 

form  of  affidavit,  bond  and  writ,  p.  582. 

garnishment  and  proceedings  thereon,  pp.  586-590. 
Missouri,  statutes  relating  to  attachment,  pp.  590-601. 

attachment  by  direct  levy,  p.  590. 

actions  in  which  will  lie — grants — affidavit,  pp.  590-591. 

jurisdiction  of  courts — bond,  p.  591. 

issue  and  service  of  writ,  pp.  592-593. 

return,  pp.  593-594. 

plea  in  abatement,  p.  595. 

garnishment,  p.  598,  et  seq. 

service  of  notice— return  of  bonds,  p.  598. 

answer — interrogatories,  etc.,  p.  599. 
Money,  attachment  of,  by  garnishment,  329  (p.  10). 

in  hands  of  receiver,  secure  from  attachment,  424  (p.  196). 

debt  from  garnishee  to  defendant  payable  in,  452, 
Montana,  statutes  relating  to  attachment,  pp.  602-605. 

actions  in  which  will  lie — affidavit — bond,  p.  602. 

execution — delivery  bond,  p.  603. 


INDEX. 


777 


Montana — Continued. 

garnishment,  ])p.  604-605. 
Mortgage,  of  chattels  jmor  to  garnishment  of  party  in  possession,  §  440. 
recording  of,  generally  required,  440  (p.  231). 
of  real  estate,  waste  under,  trees  severed,  440  (p.  233). 
Motion,  objection  to  answer  raised  by,  390. 
Municipal  corporations,  as  garnishee,  345. 
exempt  from  garnishment,  419. 
debts  contracted  by,  not  garnishable,  447,  454. 
Nebraska,  statutes  relating  to  attachment,  pp.  606-6LL 
by  direct  levy,  p.  G06. 
execution  and  return,  p.  607. 
disposition  of  attached  property,  p.  607. 
proceedings,  p.  60S. 
general  provisions,  p.  610. 
in  certain  actions,  p.  611. 
garnishment  in  certain  actions,  p.  611. 
Negligence,  garnishee  not  protected  from  consequences  of  his  own,    374 
(p.  90),  522. 
not  permitted  to  file  answers  to  overcome,  383  (p.  107). 
Negotiable  instruments,  garnishee's  indebt  dness  evidenced  by,  458-464. 
maker  of,  as  garnishee — indorsee  not  bound  by  judgment,  458. 
cannot  be  reached — reason  of  the  rule,  459-460. 
condition,  garnishment  of,  461. 
where  instrument  fraudulently  assigned,  462. 
effect  of  notice  on  right  of  indorsee,  463. 
by  what  law  negotiability  determined,  468. 
overdue,  cease  to  be  protected,  460. 
Nevada,  statutes  relating  to  attachment,  pp.  612-615. 
direct  levy,  p.  612. 

issue  of  writ — affidavit — bond,  pp.  612-613. 
execution — garnishment,  p.  613. 
perishable  property — discharge — bond,  pp.  614-615. 
New  Hampshire,  statutes  relating  to  attachment,  pp.   615-619. 
property  subject  to^exemptions,  pp.  615-616. 
real  estate,  p.  616. 

perishable  and  immovable  property,  etc.,  p.  617. 
eustody  of  property — reple\'y,  etc.,  bonds,  p.  618. 
in  equity,  p.  619. 
New  Jersey,  statutes  relating  to  attachment,  pp.  620-628. 
when  and  against  whom  issued,  p.  620. 
effect  of  writ  and  mode  of  execution,  pp.  621-622. 
appearance  by  defendant,  pp.  623-624. 

proceedings  on  return — auditor  and  his  duties,  pp.  625-627. 
proceedings  against  garnishee,  pp.  627-628. 
general  provisions,  p.  628. 
New  Mexico,  statutes  relating  to  attachment,  pp.  629-634 
by  direct  levy,  p.  629. 
affidavit  and  bond,  p   630. 
service  and  return,  p.  630. 
form  of  affidavit  and  bond,  p.  632. 
New  York,  statutes  relating  to  attachment,  pp.  634-643. 
cases  where  will  issue,  and  proceedings,  p.  634. 
executing  warrant  pending  the  action,  p.  635. 
vacating  or  m.idifying  the  warrant,  p.  639. 
two  or  more  warrants  against  the  same  defendant,  p.  641. 
proceedings  after  judgment,  warrant  vacated,  etc.,  p.  642. 
Non-residence  of  garnishee  alleged  in  answer,  taken  as  true  when  not  trav- 
ersed, 392  (p.  121). 
Non-resident  as  garnishee,  344,  359  (p.  63),  402  (p.  145). 

possession  of  defendant's  property  by,  413. 
North  Carolina,  statutes  relating  to  attachment,  pp.  644-648. 
actions  in  which  warrant  will  be  granted,  p.  644. 
affidavit,  p.  644. 


778  INDEX. 

North  Carolina — Continued. 

publication  of  summons,  p.  6441 

bond,  p.  645. 

execution  and  return,  p.  645. 

judgment  and  satisfaction,  p.  647. 
Notes  and  bills,  negotiable,  §§  458-464.     (See  Negotiable  Insteuments). 

imjjoundiug  to  prevent  negotiation,  460  (p.  267). 

when  negotiable,  assignable  under  law  merchant,.  466. 

overdue,  negotiable  in  form,  467. 
Notice,  served  on  garnishee,  357. 

on  private  corporations,  360. 

omission  of  service  of,  renders  judgment  void.  361. 

service  of,  waived  by  garnishee,  361. 

by  defendant,  362. 

of  assignment  of  choses  in  action,  necessary,  371,  410  (p.  162),^  471. 

when  and  by  whom  given,  472. 

from  plaintiff  of  dissatisfaction  with  answer,  392. 

in  absence  of  contracting  party,  not  required  to  anticipate  garmshment, 
399  (p.  136). 

of  assignment  of  chose  in  action,  effect  of,  402. 

of  transfer  of  title  to  property,  effect  of,  and  consequences  of  failure  to 
give,  436. 

claimants  required  to  appear,  435. 

of  transfer  of  title  to  prox^erty,  to  whom  given  by  garnishee,  436^ 

of  garnishee,  effect  of,  on  rights  of  indorsee  of  negotiable  paper,  463. 
Nulla  bona,  plea  of  scire  facias — what  may  be  shown  under,  403. 

Objections,  which  garnishee  may  waive,  399  (p.  137). 
Officer,  of  court  in  possession  of  property,  330  (p.  13). 

as  garnishee,  347. 

of  private  corporation  as  garnishee,  3S4,  385,  429. 

garnishment  of,  does  not  bind  corporation,  660. 

service  on,  sufficient,  360  (p.   66). 

return  of,  of  service  of  j^rocess,  363. 

of  corporation  who  may  answer  when  company  garnished,  384  (p,  109). 

of  the  state  exempt  from  garnishnsent,  418  (p.  181),  454. 

of  the  law  exempt  from  garnishment,  420,  421,  454. 

public,  who  holds  property  exempt  from  garnishment,  422,  423,  424, 
454. 
Ohio,  statutes  relating  to  attachments,  pp.  649-654. 

grounds  of,  p.  649. 

how  obtained — affidavit  and  bond,  p.  649. 

execution  and  return,  p.  650. 

disposition  of  attached  property,  p.  651. 

proceedings — delivery  bond — garnishment,  p.  652, 

general  provisions,  p.  653. 

supplementary  provisions,  p.  653. 

before  debt  due,  p.   654. 
Onus  probandi,  rests  upon  plaintiff,  380,  381,  397,  435. 

on  garnishee  as  to  trusts  under  which  he  holds,  397. 

on  plaintiff  to  disprove  assignment,  434  (p.  222). 

on  garnishee  as  to  affirmative  matter  of  defense,  520  (p.  387). 
Open  accounts,  assignment  of,  469. 
Order,  acceptance  of,  and  notice  of  garnishment  served,  priority  between,  371 

(p.  84). 
Oregon,  statutes  relating  to  attachment,  pp.  655-658. 

actions  in  which  will  issue,  p.  655. 

affidavit  and  bond,  p.  655. 

execution  and  return — property  personal  and  real,  p.  656» 

garnishment,  p.  657. 
Overdue  commercial  paper,  assignable  by  indorsement,  467. 
Ownership,  of  jjroperty  in  garnishee,  393. 

when  held  with  claim  of,  414. 


INDEX.  779 

Parties,  necessary  to  proceeding,  §§  326,  330,  447. 

garnishee  may  be  opposed  to  both  principals,  337. 

to  hearing  on  tiaverse — defendant,  395. 

interested  in  claim  to  be  set  off  against  defendant's  demand  against 
garnishee,  514. 

to  the  proceedings,  340-355. 

their  relation  to  each  other,  340. 

the  third — debtors  and  parties  in  possession  of  deiendanf  a  property,  341. 

priv^ate  corporations,  etc.,  as  garnishees,  342. 

foreign  corporations,  343. 

non-residents,  344. 

municipal  corporation,  345. 

state,  exemption  of,  .346. 

officer  of  court  as,  347. 

officer  of  private  corporation,  348. 

agent  or  servant  of  debtor,  349. 

wife  of  defendant,  350. 

debtors  and  partners,  .^51. 

judgment  debtors,  352. 

whether  joint  or  several,  353,  486-491. 

intervenors,  354. 
Partner,  as  garnishee  of  co-partner,  351. 

generally,  353. 

service  on,  359  (p.   64). 
Pamership,    attachm:;nt  of   interest  of  member  of,  by  garnishment,  334   (p. 
21)  351. 

affairs   unsettled,  no  attachable   demand   can  arise  from,  335  (p.   23), 
351  (p.  51). 

service  on,  in  action  against  firm  creditors  of,  353. 

property,  assignment  of,  for  benefit  of  creditors  of  one  memberj  effect 
of,  427  (p.  227). 

credits,  490. 
Payment,  prior  to  service,  a  good  defense,  403,  508,  507,  510-512. 

contracts  of,  in  peculiar  manner,  undisturbed  by   garnishment,  444. 

from  garnishee  not  required  until  debt  payable,  4S5. 

of  judgment  against  garnishee,  what  sufficient  to  satisfy  debt,   507. 
(See  Satisfaction.) 

as  a  defense  to  defendant's  cause  of  action,  510-512. 
Pennsylvania,  statutes  relating  to  attachment,  pp.  G58-670. 

of  the  writ,  p.  G58. 

service  and  return,  p.  659. 

subsequent  proceedings,  p.  660. 

dissolution,  p.  660. 
Domestic  attachment,  pp.  660-664. 

writ  and  proceedings  thereon,  p.  660. 

appointment  of  trustees,  and  their  powera  and  duties,  p.  662L 

distribution  among  creditors,  p.  664. 
Foreign  attachment,  pp.  665-666. 

the  writ,  p.  665. 

of  interest  in  decedent's  estate,  p.  665. 

service,  p.  665. 

on  garnishees — on  real  estate,  p.  666. 

garnishment,  p.  666. 

effect  of  attachment,  p.  QQQ. 

judgment  and  process  against  garnishee,  p.  666. 

execution,  p.  667. 

dissolution,  p.  668. 

proceedings  on  attachment  of  real  estate,  p.  668. 

when  one  of  several  defendants  liable,  p.  669. 
Pension,  money  due  for,  exempt  from  execution,  409. 
Persons,  corporations  considered  as,  342. 
Plaintiff,  one  of  the  parties  to  garnishment  proceeding,  326. 

liability  of  garnishee  to,  327. 

depends  on  cause  of  action,  and  cause  of  attachment,  327. 


780  INDEX. 

PlaintiE —Continued. 

when  garnishee  opposed  to,  §  337. 

in  garnishment  takes  place  of  defendant,  340. 

in  attachment  as  garnishee,  341,  457. 
Pleading,  garnishee's  answer  considered  as  a,  364. 

to  raise  issues  on  answer,  392. 

in  United  States  courts,  p.  417. 
Pledge,  of  personal  prcjperty,  rights  secured  by,  unaffected,  330,  414  (p.  169), 
441. 

subsequent  to  service,  ineffectual,  338  (p.  28). 
Possession,  validity  of  garnishment  does  not  depend  on  officer's  taking,  325. 

of  defendant's  property  as  an  element  of  garnishee's  liability,  327,  337, 
410. 

of  propei-ty  by  defendant  will  not  support  garnishment,  330. 

of  defendant's  property  need  not  bo  under  contract,  337,  410. 

loss  of,   does  not  defeat  garnishee's  lien,  338. 

may  be  held  by  garnishee  pending  proceedings,  338  (p.  28). 

in  general  must  be  at  date  of  service,  338  (p.  30). 

denial  of,  as  defense,  403. 

exempt  from  execution,  garnishee  not  liable  for,  409. 

immaterial  how  acquired,  410  (p.  162),  41.3. 

upon  which  garnishee's  liability  depends,  411—416. 

whether  actual  or  constructive,  411. 

actu  d  control  more  important  than  legal  control,  412. 

by  non-resident  garnishee,  413. 

whether  with  claim  of  ownership  or  not,  414. 

whether  rightful  or  otherwise,  415. 

question  of  defendant's  interest  in  or  title  to,  416. 
Practice,  in  United  States  courts,  p.  417. 
Practice  and  pleading,  to  raise  issues  on  answer,  392. 
Priority,  as  between  garnishors  and  other  claimants,  338  (pp.  30,  31). 

gained  by  prior  service,  359. 

as  between  garnishors  and  judgment  creditors  of  defendant,  382  (p.  104), 
497-499,  500-508,  512. 

as  between  courts  in  acquiring  jurisdiction  of  subject  by  action,  494. 
Privileged  communications,  not  required  to  be  disclosed  in  garnishee's  an- 
swer, 376. 
Privity,  of  contract  and  interest  necessary  to  bind  garnishee,  416  (p.  173). 

between  debtor  and  guarantor,  434,  (p.  219). 
Process,  in  garnishment,  distinguished  from  seizure,  325. 

regularity  of,  judgment  depends  on,  336. 

preliminaries  to  affidavit  and  bond,  356. 

primary  object  of,  and  how  styled,  357. 

amendment  of,  358. 

service  of — co-debtors — partners,  359. 

on  corporat'ons,  360. 

waiver  of,  by  garnishee,  361. 

by  defendant,  362. 

officer's  return,  363. 

to  bring  in  claimant  of  property  attached,  435. 

compulsory,  payment  under,  necessary  to  constitute  defense,  512. 
Pro  confesso,  interrogatories  taken,  when  answers  not  explicit,  377. 
Property,  the  possession  of  which  sustains  garnishment,  is  personal,  327  (p.  6), 
329. 

character  in  which  held  by  garnishee  after  service,  331. 

need  not  be  held  under  contract  with  defendant,  337. 

Real  estate,  possession  of,  no  cause  for  garnishment,  329,  407. 
Receiver,  of  court,  not  required  to  answer  as  garnishee,  424. 
Recital,  of  acts  of  officer,  required  in  return,  363. 
Record,  interrogatories  and  answer  pai't  of,  364  (p.  73). 

in  principal  case,  evidence  on  trial  of  traverse,  396  (p.  130). 
Regularity  of  process,  judgment  dependent  on,  336. 

Relevancy,  of  interrogatories  propounded  to  garnishee,  passed  on  by  court, 
370  (p.  82). 


i 


INDEX.  781 

Removal  of  causes,  from  state  to  United  States  court — statutes,  p.  417. 
Rent,   to  become  due  in  future,  cannot  be  recovered  by  garnishment,  §  449 

(p.  249). 
Replication,  to  answer  of  garnishee,  in  Missouri,  392. 
Representations,  by  which  garnishee  may  be  estopped,  .384. 
Representatives,  personal,  of  decedent,  as  garnishees,  404,  425,  455. 
Residence,  of  garnishee  within  state,  as  it  affects  jurisdiction,  344. 
Res  judicata,  judgment  in  garnishment  is,  528. 
Retrospective,  garnishment  not,  in  its  operation,  338  (p.  30). 

exemption  law  not,  395  (p.  127). 
Return,  day  of  process,  service  after,  ineffectual,  336  (p,  24). 

errors  in  fixing  may  be  corrected,  336  (p.  24). 

of  service  of  j)rocess,  rerj^uisites  of,  363. 

may  be  amended,  363  (p.  70). 

error  in,  waived  by  appearance,  363  (p.  71), 

day  of  execution,  sheriff  cannot  be  garnished  prior  to,  421  (p,  187,) 
Rhode  Island,  statutes  relating  to  attachments,  pp.  670-677. 

original  writ,  form,  etc,  p.  670. 

mesne  process,  p.  671. 

writ  of  replevin,  671. 

scire  facias,  p.  671. 

service  of  writ  of  attachment,  p.  672. 

upon  non-resident  guardians,  etc. ,  p."  674. 

general  provisions  relating  to,  p.  674. 

certain  provisions,  priority,  etc. ,  p.  674. 

amendments  to,  p.  676. 

foreign  attachments  to  action,  ex  delicto,  p.  677. 

Satisfaction,  of  judgment  against  garnishee  whether  necessary  to  defense,  502 
(p.  354). 

effect  of  as  a  bar  to  further  action  against  garnishee,  503,  504. 

manner  of,  to  constitute  a  bar,  506. 
Scire  facias,  examination  under,    doubtful  answers   construed  against  gar- 
nishee, 377. 

to  raise  issues  on  answer,  392,  525. 
Seizure,  garnishment  distinguished  from  attachment  by,  325. 

of  attachable  property  may  be  by  breaking  open  trunk,  etc.,  333. 
Servant,  of  debtor,  when  and  when  not  liable  as  garnishee,  330,  349. 
Service,  garnishee  held  liable  for  effects  or  credits  in  possession  at  time  of,  333. 

of  notice  must  be  regular,  336  (p.  24),  .359,  363. 

when  may  be  by  voluntary  acceptance,  336  (p.  25). 

relations  between  principals  prior  to,  unaffected,  338  (pp.  .29,  30). 

of  summons  on  joint  debtors,  353,  359  (p.  63),  523  (p.  394). 

amendment  of  writ  after,  358. 

on  private  corporations,  360. 

waiver  of  by  garnishee  ineffectual  to  bind  defendant,  361. 

by  defendant  effectual,  362. 

ofi&cer's  return  of,  what  it  should  show,  363. 

errors  in  waived  by  appearance,  363  (p.  71.) 

indebtedness  at  time  of,  or  prior  to  answer,  483. 
Set-off,  in  favor  of  garnishee  fully  stated  in  answer,  375  (p.  91). 

in  garnishee's  favor  as  defense  to  defendant's  cause  of  action,  513-518» 

claim  considered  as  to  parties  interested,  514. 

character  of  demand,  whether  legal  or  equitable,  515. 

collateral  liability,  516. 

when  should  be  acquired,  517. 

whether  due  or  to  become  due,  518. 
Sheriff,  may  reclaim  as  trustee  money  deposited  in  his  own  name,  416,  (p.  174). 
Situs,  of  personal  property,  as  it  affects  jurisdiction,  344  (pp.  40,  41),  402  (p. 

145),  486. 
Schedule,  to  accompany  officer's  return,  363  (p.  70). 
Soldiers,  pay  of  cannot  be  stopped  by  garnishment  of  paymaster,  422. 
South  Carolina,  statutes  relating  to  attachment,  pp.  677-681. 

actions  in  which  will  lie,  p.  677. 


782  INDEX. 

South  Carolina — Continued. 

warrant,  affidavit  and  bond,  p.  678. 

execution  and  return,  p.  678. 

property  attachable,  p.  679. 

indemnity  and  dissolution,  p.  680. 
Stakeholder,  garnishee  regarded  as  a,  §§  326,  331,  340,  389. 
State,  exempt  from  process  of  garnishment,  346,  418,  454. 

exemption  law  of,  where  suit  pending  governs,  373,  409  (p.  161.) 

officers  of,  exempt  from  garnishment,  418  (p.  181),  454. 

where  instrument  made  controls  its  negotiability,  464. 
Statute,  garnishment  i^roceeding  wholly  regulated  by,  333,  398. 

of  limitations  set  up  in  garnishee's  answer,  379. 

exempting  property  in.  force  at  date  of  grant,  governs,  395  (p.  127.) 

actions  in  name  of  assignee  of  chose  in  action,  authorized  by,  465. 
Statute  of  frauds,  will  not  avoid  garnishee's  liability  for  defendant,  against 

which  he  holds  indemnity,  375  (p.  93). 
Statutes,  of  different  states  and  territories,  relating  to  attachment,  pp.  417- 

725.     (See  name  of  state  or  territory  in  question.) 
Stay,  of  proceedings  in  suit  subsequent  to  garnishment  for  same  demand,  501. 
Stock,  shares  of,  how  owners'  interest  in  reached  on  execution  or  attachment, 

408. 
Stockholders,  of  corporation,  as  garnishee  when  corporation  defendant,  342. 
Stranger  to  suit  not  affected  by  judgment  on  the  answer,  3S0  (p.  101). 
Sufficiency,  of  answer,  exceptions  taken  to,  387,  390. 
Suit,  garnishment  a,  332,  350. 

pendency  of  prior,  as  defense  to  garnishment,  382. 
Summons,  defects  in,  how  reached,  357. 

service  of  in  garnishment,  359-362. 

on  co-debtors — partners,  359,  399  (p.  137). 
■  on  corporations,  360. 

waiver  of,  by  garnishee,  361. 

by  defendant,  362. 

Taxes,  due  and  unpaid,  do  not  create  a  debt  to  be  set-ofi!,  513. 
Tender,  as  a  discharge  of  garnishee  from  liabihty,  519. 
Tennessee,  statutes  relating  to  attachment,  pp.  681-687. 

for  what  causes,  in  whose  favor,  by  whom  granted,  and  where  return- 
able, p.  681. 

mode  of  suing  out,  p.  682. 

garnishment,  p.  683. 

levy  of,  p.  684. 

replevy  of  attached  property,  p.  685. 
Texas,  statutes  relating  to  attachment,  pp.  637-694 

original  attachment,  p.  687. 

issuing  writ — affidavit,  p.  687. 

bond,  p.  688. 

form  of  writ,  p.  688.   - 

levy  of  return,  p.  689. 

garnishment,  p.  690. 

form  of  writ — answer,  p.  691. 

commission  to  another  county,  p,  692. 
Third  parties,  garnishees  styled  as,  341. 

Time,  of  service,  importance  of,  in  fixing  garnishee's  liability,  338  {pp.  30, 
31),  359. 

within  which  answer  must  be  made,  388. 

may  be  extended  for  cause,  388,  389. 

of  payment  by  garnishee,  as  defense  to  defendant's  cause  of  actional  1. 

when  claim  acquired  to  be  available  as  set-off,  516  (p.  380),  517. 

and  place  of  payment  when  not  available  in  defense,  520. 
Title,  to  goods,  iincertainty  of,  will  not  defeat  garnishment,  328  (p.  7). 

lien  upon  created  by  garnishment,  338. 

to  real  estate  affected  by  answer  to  interrogatories,  no  excuse,  370. 

simulated  or  fraudulent,  to  real  estate  not  attacked  by  garnishment, 
378  (p.  98). 


INDEX.  783 

Title — Con  tinned. 

of  gcaruishee  to  property,  inquiry  as  to,  §§  393  (p.  123),  414. 

of  defendant  to  property  held  Ijy  garnishee,  416. 
Tort,  liability  f(jr,  not  an  attachable  debt,  447  (p.  244). 

when  waived,  an  1  suit  will  lie  in  assumpsit,  447  (p.  246). 
Transfer,  of  prope'  ty  after  service  ineffectual,  338,  (p.  28). 

prior  to  servise  garnishee  unaffected,  338  (p.  30),  410. 

validity  of  depends  on  assent  of  transferrer,  416  (p.  177). 

attempted  transfer  ineffectual  against  creditors,  438. 

or  incumbrance  of  proj^erty  prior  to  garnishment,  432-442. 

the  fourth  party  to  the  controversy,  432. 

the  intervenoi-'s  claim  as  proprietor,  433. 

consideration  put  in  issue  by  answer,  434. 

issues  made  with  the  intervener,  435. 

garnishee's  failure  to  give  notice  of,  436. 

eqiiitable  assignment  prior  to  service,  437. 

ineffectual,  438. 

fraudulent,  439. 

rights  of  parties  affected  by  prior  mortgage,  440. 

pledge  as  garnishee,  441. 

other  liens,  442. 
Traverse,  of  affidavit,  effect  of  in  garnishment,  325. 

of  answer  by  plaintiff,  380  (p.  100),  390  (p.  117,  393). 

places  facts,  and  not  garnishee's  belief  therein,  in  issue,  390  (p.  117). 

may  be  amended,  392  (p.  121). 

evidence  on  trial  of,  396. 
Treasurers,  when  may  not  be  garnished  in  respect  to  funds  in  possession,  422. 
Trial,  of  traverse,  evidence  on,  396. 
Trustee,  when  term  used  as  equivalent  to  "garnishee,"  325. 

property  held  not  attachable,  330  (p.  14). 

of  private  trusts  and  powers  cannot  be  garnished,  428. 

of  resulting  trust  held  as  garnishee  of  cestui  que  trusty  428  (p.  209). 
Trustee  process,  same  in  effect  as  garnishment,  325. 
Trusts,    not  to  be  affected  by  garnishment,  330  (p.  14),  416,  428. 

should  be  affected  by  garnishee's  answer,  374. 

illegal,  no  protection  to  garnishee,  374  (p.  90). 

onus  of  proving,  on  garnishee,  397,  404. 

when  conditions  of,  not  violated,  garnishee  will  be  held,  428  (pj).  209- 
210). 
Truth,  of  answer,  extent  to  which  presumed,  380. , 

in  issue  on  traverse,  393.     (See  Traverse.  ) 

Uncertain,  answers  construed  against  garnishee,  377. 
United  States,  statutes  relating  to  attachment,  pp.  417-419. 

removal  from  state  court,  p.  417. 

practice,  p.  417. 

debts  or  property  of  United  States,  p.  418. 
Unliquidated  demands,  not  the  proper  subject  of  garnishment,  447. 
Utah,  statutes  relating  to  attachment,  pp.  694-698. 

actions  in  which  will  issue,  p.  694. 

issues  of  writ — affidavit  and  bond,  p.  695. 

execution  and  return,  pp.  695-696. 

delivery  bonds,  p.  697. 

Virginia,  statutes  relating  to  attachment,  pp.  693-791. 

attachment  and  bail — affidavit,  p.  698. 

execution  and  return,  p.  699. 

bond,  p.  700. 

garnishment,  pp.  700-701. 
Voluntary  appearance,  of  garnishee,  ineffectual  against  defendant,  336. 

when  effectual,  336  (p.  25). 
Voluntary  association,  of  brokers,  transactions  under  by-laws  protected,  434 
(p.  220). 


784-  INDEX. 

Wages,  due  defendant,  exemption  of,    shown  by  garnishee'^,  answer,  §§  373 
395  (p.  126),  401. 

may  be  placed  in  issue  by  traverse,  397. 

when  should  be  claimed  by  defendant,  401  (p.  141). 
Waiver,  of  process,  by  garnishee,  ineffectual  to  bind  defendant,  336,  361,  399. 

by  defendant,  362. 

of  errors  in  officer's  return  by  appearance,  363  (p.  771). 

of  certain  matters  to  which  objection  might  be  taken,  399  (p.  137). 
Ward,  guardian  not  garnished  for  debt  of,  427. 

Warehouseman,  liable  to  assignee  of  warehouse  receipt,  445  (p.  240). 
Washington,  statutes  relating  to  attachment,  pp.  703-707. 

writ,  affidavit  and  bond,  p.  703. 

execution,  real  property,  p.  704. 

personal  property,  p.  704. 

garnishment,  p.  705.  ' 

return,  p.  706. 
West  Virginia,  statutes  relating  to  attachment,  pp.  7C3-713. 

when  and  how  sued  out — writ  and  affidavit,  p.  708. 

bond,  pp.  709-710. 

for  rent,  p.  709. 

the  lien — replevjang — keeping  or  selling,  p.  710. 

garnishment,  p.  711. 

order  of  publication — defense — conflicting  claims,  p.  711. 

plaintiff's  bond  before  sale,  p.  712. 

petition  disputing  plaintiff's  claim,  etc.,  p.  712, 

priority — rehearing  after  judgment,  etc.,  p.  713. 
Wife,  of  debtor,  as  garnishee,  350. 

interest  of,  in  decedent's  estate,  subjected  to  payment  of  husband's 
debts,  416  (p.  176),  425  (p.  199). 
Wisconsin,  statutes  relating  to  attachment,  pp.  714^722. 

how  issued,  affidavit,  p.  714. 

bond — how  executed,  p.  715. 

discharging,  vacating  or  defending,  p.  716. 

garnishment,  p.  718. 

affidavit  and  summons,  p.  718. 

garnishee's  affidavit — answer,  p.  719. 

release  bond,  p.  721. 
Witness,  garnishee  considered  as  a,  357,  381  (p.  102). 
Writ,  or  notice,  several  garnishees  may  be  named  in,  353. 
Wyoming,  statutes  relating  to  attachment,  pp.  722-727. 

affidavit,  pp.  722-723. 

garnishment,  pp.  722-724. 

release  bond,  p.  725. 

answer  and  default,  p.  725. 

attachment  in  certain  actions,  p.  727. 


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